Thomas, Kato Jamal v. State ( 2002 )

Opinion issued December 19, 2002

In The

Court of Appeals  

For The

First District of Texas  

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  NO. 01-01-00859-CR

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KATO JAMAL THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

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  On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 867695

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O P I N I O N

          Appellant, Kato Jamal Thomas, was charged by indictment with the felony offense of possession with intent to manufacture or deliver cocaine. Appellant pleaded not guilty, and the jury found him guilty of the lesser included offense of possession of cocaine. The trial court assessed his punishment at 35 years’ confinement.

          In two points of error, appellant asserts (1) the evidence was legally insufficient to sustain the conviction and (2) he was denied effective assistance of counsel. We affirm. Background

          On February 1, 2001, Deputy Deke Warren observed Charles Barrett commit several traffic offenses. Appellant was a passenger in Barrett’s vehicle at the time. As Barrett drove into a Chevron gas station, Warren activated his emergency equipment to initiate a traffic stop of the vehicle. Warren observed that Barrett initially stopped, that both men looked back at him, and that Barrett then accelerated the vehicle forward. Although Warren thought they were trying to flee, Barrett stopped the vehicle as Warren pulled next to him and pointed a spotlight at him. Warren then observed appellant moving variously toward the floorboard, the corner of the seat, and the side of the door, appearing to be removing something from his jacket pockets and his pants. Warren approached the vehicle, instructed Barrett to keep his hands on the steering wheel, went to the passenger’s side, and instructed appellant to step out of the vehicle. As appellant stepped out, Warren saw numerous small white packets lying in plain view between the passenger door and the passenger seat. As Warren handcuffed appellant, he asked appellant what was in the packets. Warren testified that appellant replied, “Boss, I didn’t make any furtive movements. You can’t put that on me because I didn’t make any furtive movements. . . . That’s not mine.”

           Warren believed the baggies contained cocaine. Therefore, he collected the 11 baggies, and field tested the contents; the result was positive for cocaine. Warren placed appellant in the back of his patrol car while Barrett was placed in another patrol car. Barrett then adamantly told Deputy Warren that the cocaine was not his. Warren called a “hot spot unit” that specializes in drug interdiction. Deputy Shawn Woelk, with the Harris County Sheriff’s Office Hot Spot Narcotics Enforcement Team, arrived at the scene and took over the investigation. Woelk asked Barrett where he lived, and Barrett stated that he and appellant were living at a Motel 6. Barrett gave Woelk a key and consent to search his motel room. Upon searching the motel room, deputies discovered a black duffle bag that contained a black digital scale and some small, empty baggies. Woelk found $246 in small bills on appellant’s person as he was being booked into the County jail.

          Carol Ann Declouette, a forensic chemist with the Harris County Medical Examiner’s Office, determined that the white substance found in the 11 baggies totaled 3.61 grams of cocaine. Sufficiency of the Evidence

          In his first point of error, appellant argues that the evidence was legally insufficient to prove he knowingly or intentionally possessed the 11 baggies of cocaine.

          A legal sufficiency challenge requires us to determine 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 offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury may believe or disbelieve all or any part of a witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981) (“A jury is entitled to accept one version of the facts and reject another or reject any of a witness’s testimony.”).

          To establish unlawful possession of cocaine, the evidence must be sufficient to show the accused knowingly exercised care, control, or management over the controlled substance, was conscious of his connection with it, and knew what it was. Brown v. State, 911S.W.2d 744, 747 (Tex. Crim. App. 1995). Evidence which affirmatively links the accused to the controlled substance suffices for proof that he possessed it knowingly. Id. The evidence used to satisfy these elements can be direct or circumstantial. Id. Factors which may establish knowing or intentional possession include whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the odor of contraband was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; and (13) affirmative statements connect the accused to the contraband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

          Here, Deputy Warren testified that when appellant stepped out of the car, the cocaine was in plain view, conveniently accessible to appellant, and located between the car’s passenger door and the passenger seat where appellant had been sitting. Warren also testified that appellant’s conduct indicated guilt, in that he observed appellant removing items from his jacket and pants pockets and then making furtive movements toward the vehicle floorboard and seat corner. Warren observed that Barrett had both hands on the steering wheel and never leaned toward the passenger seat. Additionally, appellant demonstrated knowledge of the cocaine when he stated, “Boss, I didn’t make any furtive movements. You can’t put that on me because I didn’t make any furtive movements. . . . That’s not mine.”

          There was conflicting testimony regarding ownership of the cocaine. Barrett testified at appellant’s trial that the cocaine was his and that he had told several of the deputies that it was his at the time of the arrest. However, Deputy Warren testified that Barrett adamantly denied ownership of the cocaine at the time of the arrest, that he was not found in possession of any controlled substances; and that the first time he, Deputy Warren, heard of Barrett’s claim of ownership was during appellant’s trial. Deputy Woelk also testified that Barrett did not claim ownership of the cocaine on the night of the arrest.

          The jury is exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given their testimony, and may believe or disbelieve all or any part of a witness’s testimony. Penagraph, 623 S.W.2d at 343. The evidence was legally sufficient to support the jury’s finding of guilt. We overrule point of error one. Ineffective Assistance of Counsel

          In his second point of error, appellant argues that his trial attorney rendered ineffective assistance of counsel by failing to object to (1) Deputy Warren’s testimony regarding statements made by appellant, and (2) hearsay testimony regarding statements made by Barrett.

          To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064; Howland v. State, 966 S.W.2d 98, 104 (Tex. App.—Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel’s performance was so prejudicial that it deprived him of a fair trial. Howland, 966 S.W.2d at 104. Thus, appellant must show that a reasonable probability exists 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; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must overcome the presumption that trial counsel’s strategy was sound. Gamble, 916 S.W.2d at 93.

          An appellant “making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690; 104 S. Ct. at 2066. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). No motion for new trial was filed. The record is silent as to what appellant’s counsel’s trial strategy was. To find that trial counsel was ineffective based on either of the asserted grounds would call for speculation, which we will not do. Gamble, 916 S.W.2d at 93.  

          We overrule appellant’s second point of error.

    Conclusion

          We affirm the trial court’s judgment.

                                                             Lee Duggan, Jr.

                                                             Justice

Panel consists of Justices Hedges, Keyes, and Duggan.

Do not publish. Tex. R. App. P. 47.