Williams, Ronney Earl v. State ( 2003 )

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Opinion Issued January 30, 2003

In The

Court of Appeals

For The

First District of Texas

  NO. 01-02-00405-CR

____________

RONNEY EARL WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 888423

  MEMORANDUM OPINION

          A jury convicted appellant, Ronney Earl Williams, of possession of less than one gram of cocaine. See Tex. Health & Safety Code Ann. §§ 481.115, 481.102 (Vernon Supp. 2003). The jury also found true the enhancement allegations of appellant’s two prior convictions for felony possession of a controlled substance and assessed punishment at 10 years in prison. We address (1) whether the evidence was legally and factually sufficient to show beyond a reasonable doubt that appellant knowingly and intentionally possessed the cocaine, (2) whether the trial court erred by overruling appellant’s motion to suppress evidence because the officer allegedly lacked probable cause to arrest appellant, and (3) whether appellant was denied effective assistance of counsel. We affirm.

Facts

          During their evening patrol, Houston Police Department Officers Patterson and Marquez noticed appellant’s car parked outside a convenience store in southeast Houston. Officer Patterson ran a check on the license plate of the car, in which appellant was the only occupant, and was awaiting a response when appellant pulled out of the convenience store parking lot. The officers followed appellant and testified that they observed appellant turn right after failing to signal. Appellant denied that he turned without signaling.

          The officers pulled appellant over for the traffic violation and approached the car. Officer Patterson asked to see appellant’s driver’s license and proof of insurance. While talking to appellant, Officer Patterson shone his flashlight into appellant’s car and noticed what appeared to be a crack pipe in the center console area under the radio near the dashboard. Officer Patterson ordered appellant to step out of his car and then asked appellant for permission to search the car. The officer testified that appellant consented to the search but, at trial, appellant denied consenting to the search. Officer Marquez retrieved the object that appeared to be a crack pipe.

          Officer Patterson conducted a field test on the object, and it tested positive for cocaine. The officers then arrested appellant, but did not ticket him for the traffic violation. Appellant’s car was inventoried by Officer Marquez, who found a Chore Boy scrub pad, often used as a filter for crack pipes, in the trunk.

Legal and Factual Sufficiency

          In his first and second points of error, appellant contends that the evidence was legally and factually insufficient to show beyond a reasonable doubt that appellant knowingly and intentionally possessed the cocaine.

          In reviewing for legal sufficiency, we view the evidence in the light most favorable to the verdict and ask whether a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). In reviewing for factual sufficiency, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King, 29 S.W.3d at 563; Valencia, 51 S.W.3d at 423. While conducting our analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the trier of fact, even when we disagree with the determination made by the trier of fact. King, 29 S.W.3d at 563.

          To show intentional and knowing possession of a controlled substance, the State must show that (1) appellant exercised actual care, custody, control, or management of the contraband and that (2) he knew it was contraband. Gilbert v. State, 874 S.W.2d 290, 297 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); see also Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2003). When an accused is not in exclusive control of the place where the substance is found, there must be additional, independent facts and circumstances that affirmatively link the accused to the contraband in such a manner that can conclude that he had knowledge of the contraband as well as control over it. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref’d).

          First, appellant argues that the crack pipe and the Chore Boy scrub pad found in his car belonged to Jasmine, the female passenger whom appellant’s brother, Larry, had attempted to drive home in appellant’s car the day before. The day before appellant was arrested for possession of the crack pipe, Larry took appellant’s car to get a new tire, accompanied by a woman named Jasmine. Larry stopped to get gas and left Jasmine alone in the vehicle.

          Appellant claims that Jasmine left the crack pipe and scrub pad in appellant’s car while Larry stopped to get gas. Appellant supports this theory by testimony from Larry that when Larry returned to the car after having paid for the gas, he immediately smelled an odor like a burnt fuse in the interior of the car, which odor had not been there previously. Appellant implies that this odor was caused by Jasmine’s smoking of the crack pipe alone in the car while Larry paid for the gas. Larry also testified that he did not see a crack pipe when he returned to the car after paying for the gas. Appellant claims that this testimony established that the crack pipe and Chore Boy scrub pad belonged to Jasmine, not appellant.

          Second, appellant points to testimony from Larry that appellant’s car did not have an open console and, therefore, argues that the officers could not have seen a crack pipe in plain view in the console area. At trial, Larry testified that appellant’s car contained no extra console, but contained only a basic radio with a cassette player, air conditioner, ashtray, and cup-holder. Appellant claims Larry’s testimony conflicts with Officer Patterson’s testimony that the crack pipe was situated in plain view in what Officer Patterson described as the open console area below the radio between the driver’s and passenger’s side.

          The evidence shows that appellant was the registered owner of the car in which the cocaine was found and that appellant was the only occupant of the car at the time of the arrest. Both officers confirmed that the crack pipe was located in plain view in the area underneath the radio and towards the front dashboard of the car, and, therefore, the crack pipe was conveniently accessible to appellant. Appellant testified on cross-examination that he knew what a crack pipe looked like and would be able to recognize the smell of crack cocaine that had been smoked. Although Larry and Jasmine may have had access to the console area of appellant’s car on the day before the arrest, appellant had exclusive control over the car at the time of the arrest. Further, after inventorying the car, the officers found a Chore Boy scrub pad, a material commonly used as a crack pipe filter, in the trunk of appellant’s car. The record does not reflect that Larry or Jasmine accessed the trunk on the day before the arrest.

          Although both Larry and appellant testified that appellant’s car contained no console, the fact finder, as the sole judge of the weight and credibility of the witness testimony, could disbelieve any or all of the testimony proffered and weigh the evidence in the manner it chose. Bruno v. State, 922 S.W.2d 292, 293 (Tex. App.—Amarillo 1996, no pet.). Despite Larry’s testimony, the above facts are sufficient to show that appellant had knowledge of the presence of the cocaine as well as control over it. We hold that the evidence was both legally and factually sufficient to show that appellant knowingly and intentionally possessed the cocaine.

          We overrule appellant’s first and second points of error.

Motion to Suppress

          In his third point of error, appellant contends that the trial court erred by overruling appellant’s motion to suppress evidence because the arresting officers lacked probable cause to arrest him. Specifically, appellant argues that his initial detention was not justified because he was not ticketed for the traffic violation that allegedly gave the arresting officers cause to detain him.

          Generally, a trial court’s ruling on a motion to suppress is reviewed under an abuse-of-discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). However, when the motion presents a question of law based on undisputed facts, we review de novo. Id.

          It is well-settled that items in “plain view” may be seized by law enforcement personnel if two conditions are met. Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996); State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App. 1991). These conditions include (1) that the initial intrusion must be proper (i.e., the police must have a right to be where they are when the discovery is made) and (2) that it be “immediately apparent” to the police that they have evidence before them (i.e., probable cause to associate the property with criminal activity). Ramos, 934 S.W.2d at 365; Haley, 811 S.W.2d at 599.

          The record shows that the officers initially detained appellant because he had committed a traffic offense by failing to signal a right-hand turn. See Tex. Transp. Code Ann. § 545.104 (Vernon 1999) (stating that driver commits a traffic offense if he or she fails to signal turn). A violation of a traffic law authorizes a police officer to stop a vehicle and detain its occupants briefly. State v. Cardenas, 36 S.W.3d 243, 246 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); Josey v. State, 981 S.W.2d 831, 837 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). Although appellant testified at trial that he did not fail to signal before turning, the trial court could have chosen to believe or disbelieve any or all of the testimony proffered. See Bruno, 922 S.W.2d at 293. Therefore, the trial court did not err in implicitly concluding that the officers were justified in initially detaining appellant for the traffic offense.

          While detaining appellant for the traffic offense, Officer Patterson observed an object that appeared to be a crack pipe in appellant’s car. Because the traffic stop occurred late in the evening and because they were patrolling a high-crime area, the officers testified that they were concerned for their safety. For this reason, Officer Patterson shone a flashlight into appellant’s car to see where appellant’s hands were and to check for any visible weapons. Both officers testified that the crack pipe was located in plain view in the center console area near the dashboard of appellant’s car and that appellant was the sole occupant of the car. After appellant was arrested, the Chore Boy scrub pad was found in the trunk of the car as a result of an inventory by Officer Marquez. Further, although appellant testified at trial that he did not consent to the search of his car, the officers testified that he did. Moreover, appellant does not argue on appeal that his consent was involuntary. Therefore, we presume both that appellant consented and that his consent was valid. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (valid consent to search is well-established exception to constitutional requirements of probable cause). Therefore, the trial court did not err in implicitly finding that the officers lawfully seized both the crack pipe and Chore Boy scrub pad.

          Appellant’s contention that his initial detention was not justified because he was not ticketed for the traffic violation, which gave the arresting officers cause to detain him, is irrelevant and does not negate the facts indicating that the officers were justified in initially detaining appellant or in searching his car.    A law enforcement officer who is accusing one of failing to signal a right-hand turn is not required by law to issue a citation for that person to appear in court at some subsequent time. See Tex. Transp. Code Ann. § 545.104. We hold that the trial court did not err by overruling appellant’s motion to suppress.

          We overrule appellant’s third point of error.

Ineffective Assistance of Counsel

          In his fourth point of error, appellant contends that he was denied effective assistance of counsel. Appellant complains that his counsel (1) failed to object to the State’s allegedly improper hypothetical used to commit jurors in voir dire, (2) introduced convictions more than 10 years old against appellant, (3) failed to provide photographic evidence of the interior of the automobile in question, (4) failed to object to the prosecutor’s use of bolstering, and (5) failed to object to the arresting officer’s testimony that the substance he field-tested was cocaine.

          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. 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. Id. 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).

          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).

A.      Failure to Object to Allegedly Improper Hypothetical

          Appellant first complains that he was denied effective assistance of counsel because his counsel failed to object to an allegedly improper hypothetical used by the prosecutor to commit prospective jurors during voir dire.

          During voir dire, the prosecutor made the following comments:

Do you think that knowing that, what the theory behind the law is, that even if the law says you can convict somebody on less than a gram and keeping in mind what the theory behind that law is, is there anybody who feels like you still could not convict, that you could not follow your oath as a juror to convict on the law as written? Even if I proved all the elements beyond a reasonable doubt?

          Appellant cites Atkins v. State for the proposition that the prosecutor was using the above statement to commit the venire panel improperly to the specific facts of the case. See id., 951 S.W.2d 787, 788-89 (Tex. Crim. App. 1997). However, the above questioning is distinguishable from Atkins because here, the prosecutor merely asked whether the venire panel could follow the law and convict a person for possessing less than one gram of cocaine. The prosecutor did not attempt to commit the venire panel to the specific facts of the case. Therefore, we hold that appellant’s counsel’s failure to object to these statements did not constitute ineffective assistance of counsel.

B.      Introduction of Convictions More Than 10 Years Old

          Appellant next complains that he was denied effective assistance of counsel because his counsel elicited testimony from him of three prior convictions, two of which were more than 10 years old. Appellant also complains that his counsel failed to object to the State’s questioning of appellant about his remote misdemeanor conviction for failing to identify himself to a peace officer.

          The general rule is that a witness’s credibility may not be impeached by evidence of conviction for a felony or crime of moral turpitude if 10 years have elapsed since the date of conviction or release from confinement, whichever date comes later, unless the court determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). However, in evaluating whether to admit a remote conviction, Texas courts have historically looked at subsequent convictions of a felony or crimes of moral turpitude because such convictions show lack of reformation, which is thought to attenuate prejudice interposed by a distant conviction. Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Under these circumstances, the court may “tack” the intervening convictions onto the older convictions, causing a conviction older than 10 years to be treated as not remote. Id.

          Appellant had four prior convictions.   Appellant was convicted and sentenced to four years in prison for felony possession of a controlled substance on September 18, 1990. Appellant was convicted of misdemeanor failure to identify himself to a peace officer on September 20, 1990. Appellant was convicted of aggravated robbery on January 23, 1991. Appellant was again convicted of felony possession of a controlled substance on November 23, 1992. Prior to trial, appellant’s counsel filed a motion in limine requesting that the trial court exclude evidence of these prior convictions, but the trial court never ruled on this motion. Appellant’s trial was held on March 21, 2002.

          During trial, appellant’s counsel first elicited testimony from appellant about all of the above convictions except the September 20, 1990 misdemeanor conviction. On cross-examination, the State questioned appellant about all of his four prior convictions, including the September 20, 1990 misdemeanor conviction. Appellant’s counsel did not object to this line of questioning on cross-examination.

          Although three of these convictions occurred more than 10 years before the date of the trial, appellant’s intervening conviction on November 23, 1992 removed the remoteness of his three earlier convictions, making them admissible. See id. We hold that appellant’s counsel’s introduction of evidence of his remote convictions did not constitute ineffective assistance of counsel.

C.      Failure to Provide Photographic Evidence

          Appellant also contends that he was denied effective assistance of counsel because his counsel failed to investigate adequately the case and to provide evidence of the layout of the interior of appellant’s car. Appellant claims because there was conflicting testimony from appellant’s brother, Larry, that appellant’s car contained no console as described by Officer Patterson, appellant’s counsel should have produced a diagram or photograph of the model of car in question.

          We will not hold counsel’s performance deficient unless the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced and that there is a reasonable probability that, but for counsel’s failure to investigate, the result of the proceedings would have been different. See McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).

          Although appellant’s counsel did not introduce a photograph of the car in question or of a similar model at trial, appellant’s counsel did introduce a diagram of appellant’s car, hand-drawn by appellant, which diagram was admitted into evidence without objection by the State. Further, shortly after appellant was arrested, his car was seized and sold, and, therefore, the car was not necessarily available to photograph. Thus, we cannot say that defense counsel failed to investigate adequately the case or that defense counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Moreover, even if counsel had proved there was no console, the trier of fact could still have believed that the officers observed a crack pipe in plain view in the area where a console would have been. We hold that appellant’s counsel’s failure to provide evidence of the interior of appellant’s car did not constitute ineffective assistance of counsel.

D.      Failure to Object to Alleged “Bolstering”

          Appellant next argues that he was denied effective assistance of counsel because his counsel failed to object to allegedly improper “bolstering” by the prosecutor that Officer Patterson had made several arrests for drugs and solicitation of prostitution in the location where the officers first noticed appellant before the arrest. Appellant claims that the effect of this testimony was to imply that the appellant was also involved in criminal activity merely because he was found and arrested in this location.

          Officer Patterson testified that he had made “numerous arrests” for both drug and prostitution in the area where he encountered appellant. However, this testimony did not constitute improper bolstering because evidence that a defendant is found in a high-crime area is a factor that a judge or jury may consider when determining if the arresting officer had reasonable suspicion to detain or probable cause to arrest a suspect. See Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997). Because appellant’s motion to suppress was being carried with trial, and because appellant’s counsel had already informed the judge that she wanted an article 38.23 instruction for the jury to disregard any evidence that it found had been illegally obtained, Officer Patterson’s testimony was admissible. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2003). We hold that such testimony was not improper bolstering and, therefore, that appellant’s counsel’s failure to object to this testimony did not constitute ineffective assistance of counsel.

E.      Failure to Object to Improper Expert Testimony

          Finally, appellant argues that he was denied effective assistance of counsel because his counsel failed to object to improper expert testimony by Officer Patterson. At trial, Officer Patterson testified that, after he field-tested the crack pipe, “it tested positive for cocaine.”

          Any error resulting from a police officer’s testimony regarding field-testing a controlled substance is rendered harmless when an expert later testifies and confirms the accuracy of the field test. Smith v. State, 874 S.W.2d 720, 721-22 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Here, after Officer Patterson had testified about the results of the field test, an expert testified and confirmed the field test’s validity. This later expert positively identified the substance found in the crack pipe as cocaine. Therefore, any error resulting from Officer Patterson’s testimony was rendered harmless by the expert’s subsequent testimony. We hold that appellant did not show that his counsel’s failure to object to Officer Patterson’s testimony, if error, deprived him of a fair trial.

          We overrule appellant’s fourth point of error.

Conclusion

          We affirm the trial court’s judgment.

     Tim Taft

     Justice

Panel consists of Justices Taft, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).