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 2002-04

Walter Earl Franklin v. State of Texas ( 2002 )


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  • NO. 12-01-00016-CR



    IN THE COURT OF APPEALS



    TWELFTH COURT OF APPEALS DISTRICT



    TYLER, TEXAS

    WALTER EARL FRANKLIN,

    §
    APPEAL FROM THE SECOND

    APPELLANT



    V.

    §
    JUDICIAL DISTRICT COURT OF



    THE STATE OF TEXAS,

    APPELLEE

    §
    CHEROKEE COUNTY, TEXAS

    Walter Earl Franklin ("Appellant") appeals his conviction for delivery of a controlled substance, for which he was sentenced to confinement for twenty years. Appellant raises four issues on appeal. We affirm.



    Background  

    Appellant was indicted for intentionally or knowingly delivering, by actual transfer, less than one gram of cocaine to Kenneth Bingham. Appellant pleaded "not guilty," and a jury trial was conducted. During trial, Richard Garner ("Garner"), an investigator for Dogwood Trails Narcotics Task Force (the "Task Force"), testified that Kenneth Charles Bingham ("Bingham"), an undercover officer who was wired with a microphone and transmitting device, participated, along with a police informant, in a drug purchase from Appellant. Garner testified, without objection, as to the events of the drug deal between Appellant and Bingham, to which he listened remotely via the transmitter. Garner further testified that after he heard the events of the transaction, he met with Bingham, who produced the cocaine he had purchased from Appellant. Garner then described the actions he took to maintain chain of custody of the cocaine and testified as to the authenticity of the tape recording of the transaction.

    Next, Bingham testified and confirmed that he was working as an undercover officer for the Task Force and was accompanied on the night in question by a female informant. Bingham further testified, without objection, that the informant identified Appellant as the man who sold Bingham cocaine. Bingham identified Appellant in court as the person who sold him the cocaine on the night in question. Bingham also testified that he purchased cocaine from Appellant and described the actions he took to maintain the chain of custody of the cocaine.

    The State of Texas (the "State") called two additional witnesses - Gerald Kerr ("Kerr") and Shanna Hampton ("Hampton"). Kerr testified that he was the custodian of the evidence in question and further testified as to the chain of custody of the cocaine. Hampton testified as to her analysis of the evidence in question, which she determined to be 0.14 grams of cocaine.

    Appellant called three witnesses to testify in his defense - Lester Charles Alexander ("Alexander"), Vernell Woods ("Woods"), and Mark Anthony Mallory ("Mallory"). Alexander testified that he knew Appellant and recalled that he and Appellant were building a pulp wood trailer at the time of the transaction described by Garner and Bingham. Woods testified that she also knew Appellant and that she had never known him to sell drugs or cause trouble in the neighborhood. Mallory testified that he had never known Appellant to be a problem.

    At the close of evidence, the jury found Appellant guilty of delivery of a controlled substance. Following a hearing on punishment, the jury assessed punishment. The docket references the punishment assessed at four years of confinement. However, both the reporter's record and the trial court's judgment reflect an assessment of punishment at twenty years of confinement.



    Ineffective Assistance of Counsel  

    In his first issue, Appellant contends that his conviction should be reversed due to ineffective assistance of counsel. The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The test set forth in Strickland requires a two-step analysis:



    •    Did the attorney's performance fail to constitute "reasonably effective assistance," i.e., did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms, and


    • If so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings could have been different?




    See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A "reasonable probability" was defined by the Supreme Court as a "probability sufficient to undermine confidence in the outcome." Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on Appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.-Texarkana 2000, pet. ref'd). He must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id. After proving error, Appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney's errors, the jury would have had a reasonable doubt about his guilt. Id.  

    In the case at hand, Appellant complains of his trial counsel's numerous failures to object to allegedly damaging testimony, his failure to obtain ruling on pre-trial discovery motions, his failure to verify whether subpoenas had been served and his failure to demonstrate knowledge of the status of Appellant's appeal, and argues that such failures collectively fall short of the minimum acceptable requirements of effective assistance. However, even assuming arguendo that Appellant's trial counsel's inactions, as noted in Appellant's brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. Appellant's brief is devoid of any argument that but for his counsel's alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. Therefore, since Appellant has failed to satisfy his burden under Strickland, we hold that Appellant's trial counsel was not ineffective. Appellant's first issue is overruled.



    Right to Cross Examine  

    In his second issue, Appellant contends that he was denied his right to confront the witnesses against him. (1) Specifically, Appellant argues that the trial court denied him the right to cross examine the informant referred to in the testimony of Garner and Bingham. However, in so arguing, Appellant concedes that the State never called the informant as a witness, that Appellant's attorney never sought to serve the informant with a subpoena, and that Appellant made no objection regarding his right to confront this witness.

    Even constitutional errors may be forfeited by failure to object at trial. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). A defendant who does not object to a violation of his right to confront witnesses does not preserve the error for appeal. See, e.g., Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991) (stating that the appellant, by not objecting on confrontation grounds until after out-of-court statement was admitted, appeared to have waived claim); Briggs v. State, 789 S.W.2d at 924 (holding that, by failing to object to object at trial, the appellant waived claim that admission of videotape violated right to confrontation); Thacker v. State, 999 S.W.2d 56, 61 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (holding that, by not objecting to hearsay testimony on Confrontation Clause grounds, defendant waived review of claim on appeal). Thus, we hold that Appellant, by failing to subpoena the informant, who the State never called as a witness, and further by not calling the matter to the trial court's attention, waived such a claim on appeal. Appellant's second issue is overruled.



    Evidentiary Sufficiency  

    In his third issue, Appellant contends that the evidence was legally and factually insufficient to support his conviction. Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury's verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).  

    In the case at hand, Appellant was indicted for intentionally or knowingly delivering, by actual transfer, less than one gram of cocaine to Kenneth Bingham. See Tex. Health & Safety Code Ann. §§ 481.112(a); 481.102(3)(D) (Vernon Supp. 2002). Garner testified that Bingham participated, along with a police informant, in a drug purchase from Appellant. Garner testified, without objection, as to the events of the drug deal between Appellant and Bingham, to which he listened remotely via the transmitter. Garner further testified that after he heard the events of the transaction, he met with Bingham, who produced the cocaine he had purchased from Appellant. Garner then described the actions he took to maintain chain of custody of the cocaine and testified as to the authenticity of the tape recording of the transaction. Next, Bingham testified and confirmed that he was working as an undercover officer for the Task Force and was accompanied on the night in question by a female informant. Bingham further testified, without objection, that the informant identified Appellant as the man who sold Bingham cocaine. Bingham identified Appellant in court as the person he remembered selling him the cocaine on the night in question. Bingham also testified that he purchased cocaine from Appellant and described the actions he took to maintain the chain of custody of the cocaine. Kerr testified that he was the custodian of the evidence and further testified as to the further chain of custody of the cocaine. Hampton testified as to her analysis of the evidence, which she determined to be 0.14 grams of cocaine. Appellant makes no specific argument as to how the evidence in this case is legally insufficient. Based on our review of the record, as outlined above, we hold that the evidence is legally sufficient to support Appellant's conviction of delivery of a controlled substance.  

    Turning to the factual sufficiency review process, we first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence in the record related to Appellant's sufficiency challenge, not just the evidence which supports the verdict. Id. We review the evidence weighed by the jury which tends to prove the existence of the fact in dispute, and compare it to the evidence which tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We may disagree with the jury's determination, even if probative evidence exists which supports the verdict. See Clewis, 922 S.W.2d at 133. However, our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See VanZandt v. State, 932 S.W.2d 88, 96 (Tex. App.-El Paso 1996, pet. ref'd). We will reverse only when the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 134.

    In the instant case, Appellant called three witnesses to testify in his defense. Alexander testified that he knew Appellant and recalled that he and Appellant were building a pulp wood trailer at the time of the transaction described by Garner and Bingham. Woods testified that she also knew Appellant and that she had never known him to sell drugs or cause trouble in the neighborhood. Mallory testified that he had never known Appellant to be a problem. Of the testimony offered by these defense witnesses, Alexander's is the only testimony that specifically contradicts the evidence presented by the State. But even considering Alexander's testimony, we are mindful that our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and note that where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See VanZandt, 932 S.W.2d at 96. Our review of the record as a whole does not reveal any great weight of evidence causing us to conclude that the jury's verdict is so contrary to the great weight of the evidence presented at trial so as to be clearly wrong and unjust. Therefore, we hold that the evidence is factually sufficient to support Appellant's conviction of delivery of a controlled substance. Appellant's third issue is overruled.



    Variation Between Docket Entry and Actual Sentence Imposed  

    In his fourth issue, Appellant contends that the trial court committed reversible error by imposing a sentence which varied from the sentence recorded in the court's docket entry. Appellant has not cited, nor are we aware of, any authority prescribing that the sentence imposed by the judgment must comport with the notation in the court's docket sheet. We therefore hold that by his failure to adequately brief the court on this issue, Appellant has waived such a complaint. (2) See Tex. R. App. P. 38.1(h). Appellant's fourth issue is overruled.

    Accordingly, the judgment of the trial court is affirmed.







    SAM GRIFFITH

    Justice





    Opinion delivered April 30, 2002.

    Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.  

















    (DO NOT PUBLISH)

    1.

    Appellant also argues that the trial court denied him of his right to investigate free from fraud, deceit, dishonesty and misrepresentation. Appellant's argument is based on the supposition that prosecution of cases involving the use of undercover officers and informants, which Appellant equates to deceptive activity, violates Rule 8.04 of the Texas Rules of Professional Conduct. Appellant has cited no Texas case that supports this proposition, nor are we aware of any. Moreover, even assuming arguendo that, by relying on confidential informants to support its case, the prosecution did violate Rule 8.04, such a violation would have no bearing on our disposition of the instant case. Rule 8.04 governs the conduct of attorneys and makes no provision for reversal of cases based on attorney misconduct, if any. See Tex. Disciplinary R. Prof'l Conduct 8.04, reprinted in Tex. Govt. Code Ann. tit. 2, subt. G, app. A (Vernon 1998) (Tex. State Bar. R. art. X, § 9).

    2.

    We do note, however, that the trial court is required to pronounce the sentence in the defendant's presence. See Tex. Code. Crim. Proc. Ann. article 42.03 § 1(a) (Vernon Supp. 2002). When the sentence differs from the oral pronouncement of punishment, the written sentence should be reformed to conform with the record of the proceedings. See Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986). However, in the instant case, as Appellant correctly states in his brief, the in-court, oral pronouncement of Appellant's twenty-year sentence is in harmony with the written pronouncement in the judgment. As Appellant has presented us with no further authority on the subject, we conclude that there is no error in the trial court's judgment assessing Appellant's sentence at confinement for twenty years.