Anthony Deron Carr v. State ( 2016 )

Affirm and Memorandum Opinion filed November 22, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00732-CR
ANTHONY DERON CARR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1411110
MEMORANDUM OPINION
Anthony Deron Carr appeals his conviction for possession with intent to
deliver more than four but less than two hundred grams of cocaine. See Tex.
Health & Safety Code § 481.112(A) (West 2015). Appellant raises three issues for
review: (1) whether the evidence was legally sufficient to support his conviction;
(2) whether forgoing factual-sufficiency review violates the Constitutional
guarantees of equal protection and due process; (3) whether the trial court’s
admission of testimonial hearsay statements from an undisclosed informant
violated his Constitutional rights to confrontation and due process; and (4) in the
alternative, whether he received ineffective assistance of counsel. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
During December 2013, the Harris County Sherriff’s Department received
an anonymous tip that appellant was involved in drug activity. Acting on the tip,
Deputy Anthony Thompson parked his unmarked car at a nearby church to observe
appellant at a residence. For approximately one hour, Deputy Thompson observed
foot traffic consistent with drug distribution. Numerous people stopped at the
residence for a few minutes and then left. Appellant remained in the residence
during this time. Deputy Thompson did not observe any hand-to-hand drug
transactions.
Morris Williams and another individual arrived. Deputy Thompson did not
know whether they entered the residence. When appellant and the two individuals
began to leave the property, Deputy Thompson, and his back-up, moved in to
detain them. Appellant remained while the other individuals fled on foot. Deputies
found Williams hiding in a nearby trailer. The other individual was not located.
Deputies did not search the trailer. Deputies detained appellant and Williams
together in the patrol car.
Deputy Thompson asked appellant about the residence and told appellant
what he observed during his surveillance. Appellant said he did not live at the
residence and that it belonged to his uncle. Deputy Thompson later learned that
appellant’s uncle was deceased. Deputy Thompson then approached the residence
and smelled the odor of marijuana. This prompted Deputy Thompson to ask
appellant about the odor. Appellant admitted that somebody was smoking
marijuana at the residence. Deputies subsequently obtained a search warrant for the
2
residence based on the marijuana odor and activity Deputy Thompson observed
that morning.
The dash cam video in the patrol car recorded conversations between
appellant and Williams while they were detained. Appellant’s statements reveal
that he was frustrated and nervous, and that there was something significant about
a box inside the house. Williams told appellant that there was drugs and money in
the Buick. Deputies did not search the Buick.
Upon searching the residence pursuant to the search warrant, deputies
recovered a total of fifty-two grams of cocaine. Six grams of powder cocaine was
hidden in a teddy bear. The remaining cocaine, in the form of crack, was found in
a cereal box. Deputies found men’s clothing and mail addressed to appellant in the
same room as the teddy bear that hid the six grams of powder cocaine. The crack
cocaine in the cereal box appeared to be prepared for distribution. Only law
enforcement personnel were present when the residence was searched. When
deputies searched appellant, they found no drugs, money, or firearms. Appellant
did not appear to be under the influence of any drugs.
A jury convicted appellant of possession with intent to deliver cocaine.
Jurors assessed punishment at twenty years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice. Appellant timely filed a
notice of appeal.
II. ANALYSIS
A. Factual Sufficiency
We first address appellant’s second issue because its resolution determines
the standard under which we review his first. Appellant raises multiple
Constitutional challenges to the standard of review for sufficiency of the evidence
3
and asks this court to conduct a factual-sufficiency review of the evidence adduced
at trial—a standard that the Court of Criminal Appeals expressly has rejected.
Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.). As an
intermediate appellate court, we are without power to conduct factual-sufficiency
review because we are “bound to follow the law as declared by the state’s highest
courts.” LeBlanc v. State, 138 S.W.3d 603, 606 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (citing Rodriguez v. State, 47 S.W.3d 86, 94–95 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d)); see also Mayer v. State, 494 S.W.3d 844,
848 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). Although an intermediate
appellate court’s decision “shall be conclusive on all questions of fact brought
before them on appeal or error,” the Texas Court of Criminal Appeals has the
authority to determine questions of law, including the standard of review that an
intermediate appellate court must use in conducting factual review. See Tex. Const.
art. V, § 6(a) (providing for questions of fact to be resolved by intermediate
appellate courts); Roberts v. State, 221 S.W.3d 659, 663 (Tex. Crim. App. 2007).
In Brooks, the Court of Criminal Appeals directed intermediate courts to
apply a single standard of review to legal- and factual-sufficiency challenges in
criminal cases, using the Constitutional standard established in Jackson v. Virginia,
443 U.S. 307, 319 (1979). Brooks, 323 S.W.3d 893 at 901. The Court of Criminal
Appeals determined that the standard announced in Clewis v. State, 922 S.W.2d
126, 133 (Tex. Crim. App. 1996), should no longer be applied to review the factual
sufficiency of the evidence, and instructed lower courts to follow the Jackson
standard for the review of factual-sufficiency challenges. Id. In numerous later
decisions, the Court of Criminal Appeals has reaffirmed its directive to the courts
of appeals—not merely as a plurality of the court, but instead by its now-
unanimous precedent. See, e.g., Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim.
App. 2011) (per curiam); Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App.
4
2010). When, in a situation such as this, the Court of Criminal Appeals “has
deliberately and unequivocally interpreted the law in a criminal matter, we must
adhere to its interpretation.” Mason v. State, 416 S.W.3d 720, 728 & n.10 (Tex.
App.—Houston [14th Dist.] 2013, pet. ref’d). Accordingly, we reject appellant’s
challenge to the single standard of review announced in Brooks and overrule
appellant’s second issue.
B. Legal Sufficiency
Having overruled appellant’s request for factual-sufficiency review, we
address his first issue challenging the legal sufficiency of the evidence.
When engaging in a review of the legal sufficiency of the evidence
supporting a conviction, we “examine all of the evidence in the light most
favorable to the verdict and determine whether a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt.” Jackson,
443 U.S. at 319; Price v. State, 456 S.W.3d 342, 347 (Tex. App.—Houston [14th
Dist.] 2015, pet. ref’d). “Although we consider everything presented at trial, we do
not reevaluate the weight and credibility of the evidence or substitute our judgment
for that of the fact finder.” Price, 456 S.W.3d at 347.
(1) Knowing Possession
A person commits an offense if he knowingly possesses, with intent to
deliver, a controlled substance. See Tex. Health & Safety Code § 481.112(A)
(West 2015). Cocaine is a controlled substance. See id. § 481.102(3)(D).
“Possession” means “actual care, custody, control or management.” Id. § 481
.002(38). “In a possession-with-intent-to-deliver case, the State must prove the
defendant (1) exercised care, custody, control, or management over the controlled
substance, (2) intended to deliver the controlled substance to another, and (3) knew
5
that the substance in his possession was a controlled substance. Cadoree v. State,
331 S.W.3d 514, 524 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
Possession need not be exclusive. Evans v. State, 202 S.W.3d 158, 162 (Tex.
Crim. App. 2006). When, as here, the accused is not in exclusive possession of the
place where the contraband is found, the record must contain additional facts and
circumstances linking the defendant to the contraband.1
The Court of Criminal Appeals has provided a non-exhaustive list of
fourteen “links” that might prove possession and knowledge of contraband:
(1) the defendant’s presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant’s proximity to and
the accessibility of the narcotic; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether
the defendant made incriminating statements when arrested; (7)
whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether there was an odor of
contraband;(10) whether other contraband or drug paraphernalia were
present; (11) whether the defendant owned or had the right to possess
the place where the drugs were found; (12) whether the place where
the drugs were found was enclosed; (13) whether the defendant was
found with a large amount of cash; and (14) whether the conduct of
the defendant indicated a consciousness of guilt.
Evans, 202 S.W.3d at 162 n.12; see also Flores v. State, 440 S.W.3d 180, 188
(Tex. App. —Houston [14th Dist.] 2013), judgment vacated on other grounds, 427
S.W.3d 399 (Tex. Crim. App. 2014). The links analysis “protects the innocent
1
Appellant contends that the State failed to prove exclusive possession of the house. The
record supports, and the State does not contest, this conclusion. Therefore, the record must
contain additional facts and circumstances which link appellant to the cocaine. Poindexter v.
State, 153 S.W.3d 402, 406, 408 (Tex. Crim. App. 2005) (internal quotations omitted), overruled
in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173, n.32 (Tex. Crim. App.
2015).
6
bystander . . . from conviction merely because of his fortuitous proximity to
someone else’s drugs.” Evans, 202 S.W.3d at 161–62. The number of links is not
dispositive, “but rather the logical force of all the evidence, direct and
circumstantial.” Id. at 162. Additionally, “[t]he absence of various links does not
constitute evidence of innocence to be weighed against the links present.” Flores,
440 S.W.3d at 189 (quoting Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d)).
Factor (1) favors a link. When, as here, the searched location is in the same
condition as when the defendant was last present, this factor may favor a link. See
Haggerty v. State, 429 S.W.3d 1, 7 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d) (defendant was present for purposes of links analysis, despite not witnessing
search, because the house “would have been in the same condition as it was when
appellant left and locked the door”).
Factors (2), (3), (4), and (5) do not link appellant to the cocaine. The
contraband was not in plain view. Appellant was outside of the home and not in
close proximity to the cocaine. Deputy Thompson testified that appellant did not
appear to be under the influence of drugs, and appellant did not possess any
contraband or cocaine when he was arrested.
Appellant contends that factor (6) does not favor a link because he made
incriminating statements about marijuana but not cocaine. We disagree. Appellant
admitted to marijuana use at the house and made several statements that, in
context, link appellant to the cocaine. Appellant referenced a box. He also stated,
“Things are about to get deeper than rap,” and “I should had these folks shoot me.”
Deputy Thompson testified to the significance of this first statement: “It could
mean, I’m going to get into some really deep trouble, or, I might spend some time
[in prison].” A jury could reasonably infer, based on appellant’s statements, that
7
appellant knew about, and was linked to, the cocaine hidden in the box. Factor (6)
favors a link.
Factors (7), (8), and (9) do not link appellant to the cocaine. Appellant did
not attempt to flee or make furtive gestures. The record does not indicate whether
the cocaine had an odor.
Factor (10) favors a link. The residence smelled of marijuana and appellant
admitted to using marijuana. Although no marijuana was recovered, a jury could
reasonably infer, from the odor and appellant’s admission, that marijuana
contraband had been present.
Factor (11) favors a link. Both parties agree that appellant had the right to
possess the house. On the morning of the arrest, Deputy Thompson observed
appellant stay at the residence while others came and went. Finally, police found
appellant’s mail and male clothing inside the same bedroom where they found
some of the cocaine.
Factor (12) favors a link because the places where the drugs were found, a
cereal box on the kitchen counter and inside a teddy bear, were enclosed.
Factor (13) does not favor a link because the record contains no evidence
that appellant had a large amount of money.
Factor (14), which asks whether appellant’s conduct indicated a
consciousness of guilt, favors a link. Deputy Thompson told appellant what he saw
appellant do during his surveillance. While appellant and his associate Williams
were detained in the patrol car, appellant said, “The man say he be seeing me all
morning. That’s how I know no one's paying attention. He ain’t lying. He told me
every move I made.” Williams said “Blue” had the money and appellant replied
that he was not concerned about the money, which was “petty shit” compared to
8
what the police were after. Appellant told Williams that police were obtaining a
warrant, and then said: “Things are about to get deeper than rap.” Appellant
indicated that there was something special about a box in the house and police
found the majority of the cocaine in a cereal box. He also commented “I should
had these folks shoot me.” From these facts, a jury could reasonably infer that
appellant was conscious of his guilt.
In sum, Deputy Thompson observed appellant remain at the residence while
other people were frequently coming and going in a high-crime neighborhood.
When deputies executed the search warrant, the house was in the same condition as
when appellant was last there, and only the deputies were present. Police found
crack cocaine enclosed in the cereal box on the kitchen counter and appellant
indicated, while detained, that there was something significant about “a box.”
Appellant had the right to possess the house and his property was in the bedroom
where police found some of the cocaine.2 Once police detained appellant and
informed him that they were getting a search warrant, appellant became upset and
made statements to Williams indicating that he knew of the contraband and that he
would face serious criminal charges. From these facts, a jury rationally could have
concluded that appellant exercised the requisite care, custody, control, or
management over the contraband and that appellant knew the substance possessed
was contraband.3
2
The record does not contain any evidence of shared possession of the bedroom.
3
Appellant equates this case with Medina, a case where there was legally insufficient
evidence to support a conviction for possession of cocaine. Medina v. State, __ S.W.3d __, 2011
WL 6013094 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, no pet.). This case is distinguishable
from Medina. There, Medina was not present at the house when the drugs were found, the drugs
were found in the living room near two other present individuals, and Medina was absent from
the house for at least four hours prior to the search. Id. at *4–7. Further, while police observed
Medina engaging in hand-to-hand suspected drug transactions during previous surveillance on
the residence, those transactions were unconfirmed and no transactions took place on the date of
9
Appellant argues that there is sufficient evidence linking Williams to the
cocaine. For instance, Williams admitted to stashing drugs in the Buick, he could
have been inside the house, and he attempted to evade deputies. This scenario is a
possible inference from the evidence, but it is not the only possible inference.
When the record supports conflicting inferences, we presume that the jury resolved
the conflicts in a manner supporting its verdict and defer to that determination.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
(2) Intent to Deliver
“Deliver” means to transfer, actually or constructively, to another a
controlled substance.” Tex. Health & Safety Code § 481.002(8) (West 2015).
Expert testimony by an experienced law enforcement officer, as used in this case,
may help establish an accused’s intent to deliver. See Mack v. State, 859 S.W.2d
526, 529 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Quantity may show that a
defendant intends to distribute narcotics rather than just possess it for personal use.
Poindexter, 153 S.W.3d at 412.
The amount of drugs seized and its packaging provided evidence of intent to
deliver. Deputy Thompson testified that the cocaine’s packaging and the manner in
which it was cut indicated that it was prepared for distribution. Deputy Thompson
estimated the street value of the crack cocaine and powder cocaine at
approximately $600 and $75, respectively. Based on his experience in the field,
Deputy Thompson testified that appellant did not appear to be a crack addict. From
the arrest. See id. In sustaining Medina’s sufficiency challenge, the court focused on the fact that
another person with a right to possess the residence was present at the time the officers entered,
and there were no other links. Id. at *5. Here, by contrast, police immediately detained appellant
and his two associates as they were leaving the house, nobody was present inside the house
during the search, and appellant made statements strongly indicating frustration and guilt.
Furthermore, police here executed the search warrant on the same day of Deputy Thompson’s
surveillance.
10
these facts, a juror rationally could have concluded that appellant did not possess
the drugs for personal use, but for delivery.
Viewing the evidence in the light most favorable to the verdict, we hold that
the evidence was legally sufficient to support the jury’s verdict that appellant
possessed and intended to deliver cocaine. We overrule appellant’s first issue.
C. Hearsay
In his third issue, appellant contends the trial court violated his rights to due
process, confrontation, and cross-examination when it (1) admitted testimonial
hearsay from an anonymous tipster and (2) denied disclosure of the tipster’s
identity.
(1) Hearsay and Right to Confrontation
Appellant argues that the anonymous tipster’s out-of-court statement is
testimonial hearsay. The hearsay was revealed to the jury within this exchange
between Deputy Thompson and the prosecutor:
Q: Let me stop you there. What led you to start investigating this
residence?
A. An anonymous tip.
…
Q. Where did that anonymous tip come from?
A. Anyone can call our database or our office and leave information
on drug activity.
…
Q. So after receiving an anonymous tip, what did you do?
A. Once I found out who the target was, I started to do my homework
on who he was and where he lived at. And I already had the target
location, I’ve just got to make sure that this is where he hangs out at
and where all the drug activity is taking place.
Q. So the information you got was not that somebody was doing
11
drugs, it was specifically that the defendant was doing drugs?
A. Yes.
Constitutional claims can be waived by failure to object. Smith v. State, 721
S.W.2d 844, 855 (Tex. Crim. App. 1986). To preserve an error for appellate
review, a party must present a timely objection to the trial court, state the specific
grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a). To preserve
error where objectionable testimony is involved, a party must object every time the
allegedly inadmissible testimony is offered. See Ethington v. State, 819 S.W.2d
854, 858 (Tex. Crim. App. 1991); see also Rios v. State, 263 S.W.3d 1, 6 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d, untimely filed).
Appellant did not object to the State’s questions or Deputy Thompson’s
testimony. Appellant cites the transcript for the out-of-jury conference to show that
he preserved this issue for appeal. However, at no point during that conference did
defense counsel argue that the State repeated or elicited inadmissible hearsay, or
that appellant’s Sixth Amendment right to confrontation was violated.
Accordingly, appellant’s failure to object on hearsay and confrontation grounds at
trial waives these arguments on appeal. See Smith, 721 S.W.2d at 855; see also
Ethington, 819 S.W.2d at 858.4
(2) Due Process Under Rule 508(c) and Brady
In his sub-issues, appellant contends he was denied the process due under
rule 508(c) and Brady. See Tex. R. Evid. 508(c)(2); Brady v. Maryland, 373 U.S.
83, 87 (1963).
4
Appellant requests reversal based on the constitutional harm standard under Texas Rule
of Appellate Procedure 44.2(a). Appellant is not entitled to a constitutional harm analysis
because he did not preserve this issue for appellate review. See Cosio v. State, 353 S.W.3d 766,
776–77 (Tex. Crim. App. 2011) (stating that because defendant did not preserve his constitution-
based jury charge claim, “he [was] not entitled to a harm analysis under Rule 44.2(a)”).
12
Pursuant to rule 508(c), the State is privileged from disclosing the identity of
a person that has furnished relevant or useful information to a law enforcement
investigation. Tex. R. Evid. 508(c)(2). The privilege is inapplicable “if the court
finds a reasonable probability exists that the informer can give testimony necessary
to a fair determination of guilt or innocence.” Id. “The mere filing of a Rule 508
motion is insufficient to obtain a hearing, much less compel disclosure.” Bridges v.
State, 909 S.W.2d 151, 157 (Tex. App.—Houston [14th Dist.] 1995, no pet.). The
burden lies with the defendant to satisfy the terms of the exception, and this
obligates him to establish that the information is necessary and significant. Ford v.
State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); see
also Bridges, 909 S.W.2d at 157 (“[T]he informer’s potential testimony must be
shown to significantly aid appellant, and mere conjecture or supposition about
possible relevance is insufficient.”). If the court finds that the privilege is
inapplicable and the State claims the privilege, the court must give the State an
opportunity to show in camera facts relevant to determining whether this exception
is met. Tex. R. Evid. 508(c)(2).
During his cross-examination, defense counsel learned that Deputy
Thompson contacted the individual who provided the anonymous tip. Defense
counsel subsequently asked Deputy Thompson for the tipster’s name. The State
objected, claiming the confidential informant privilege. See Tex. R. Evid. 508(c).
The trial court held a hearing outside the presence of the jury. During the hearing,
defense counsel stated that he knew about the initial anonymous tip but the State
did not inform him that Deputy Thompson had later phoned the tipster. Defense
counsel stated that the tipster could now be classified as an informant, and that the
State should have disclosed this fact. Defense counsel concluded that the State
13
violated Brady. After hearing Deputy Thompson’s testimony5 and counsel’s
arguments, the trial court overruled appellant’s objection, although the defense had
not objected before or during this conference.
Whether the tipster remained anonymous or became a confidential informant
is immaterial to our analysis. Appellant did not move to compel the state to
disclose the alleged confidential informant under any of the rule 508(c) exceptions.
Defense counsel did not argue, pursuant to rule 508, that information from the
informant was necessary and significant.6 Defense counsel appeared to assert only
that the State violated Brady. What is more, appellant has not cited, and the record
does not reflect, a trial court ruling on this issue. Therefore, appellant failed to
preserve the rule 508(c) issue for appeal. See Buchanan v. State, 207 S.W.3d 772,
774–78 (Tex. Crim. App. 2006) (trial court motion based on constitutional
arguments did not preserve error for statutory claims on appeal); see also Tex. R.
App. Proc. 33.1(a).
To demonstrate reversible error under Brady, an appellant must show: (1)
the State suppressed evidence, regardless of the prosecution’s good or bad faith;
(2) the suppressed evidence is favorable to appellant; and (3) the evidence is
material, that is, there is a reasonable probability that, had the evidence been
disclosed, the outcome of the trial would have been different. See United States v.
Bagley, 473 U.S. 667, 682–83 (1985); Ex parte Kimes, 872 S.W.2d 700, 702 (Tex.
Crim. App. 1993).
5
During the hearing, Deputy Thompson testified that the initial tip informed him where
the drug activity was taking place, and after contacting the informant, he learned of appellant’s
identity.
6
Instead, defense counsel argued: “And I'm not saying she is a confidential informant,
Judge. I'm saying that certainly this information should have been brought to my attention
immediately, if not sooner.”
14
“When the evidence is disclosed at trial, the issue is whether the tardy
disclosure prejudiced the defendant.” Little v. State, 991 S.W.2d 864, 866 (Tex.
Crim. App. 1999); see also Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App.
1999). Prejudice is not shown where the information is disclosed in time for the
accused to make effective use of it at trial. See Little, 991 S.W.2d at 866. When
defendant fails to request a continuance, he waives any error resulting from the
State’s failure to disclose evidence. See Lindley v. State, 635 S.W.2d 541, 543–44
(Tex. Crim. App. 1982); see also State v. Fury, 186 S.W.3d 67, 73-74 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d).
Appellant learned of the phone interview during trial. Appellant did not seek
a postponement, move for continuance, or move to disclose the alleged informant’s
identity under rule 508. Tex. Crim. Proc. Code art. 29.13 (West 2015); Tex. R.
Evid. 508(c)(2). Presenting these motions would have allowed appellant time to
address any impact of, and develop a necessary response to, the evidence.
Appellant did not seek this relief and consequently waived any error. See Lindley,
635 S.W.2d at 543–44.
Assuming appellant’s Brady complaint was properly preserved, it still fails.
Appellant directs us to Bagley and argues that impeachment evidence is
exculpatory. Bagley, 473 U.S. at 676. In Bagley, the government induced the
witnesses to testify against the defendant. The government knew about this
impeachment evidence and withheld it from the defense. Id. By contrast, evidence
that Deputy Thompson contacted the tipster and asked for appellant’s identity is
not exculpatory and appellant fails to point to any impeachment evidence the State
withheld here.
To the extent that appellant argues that he has a right to cross-examine the
tipster for discovery of potential impeachment evidence, the United States
15
Supreme Court has stated that “[t]here is no general constitutional right to
discovery in a criminal case, and Brady does not create one.” See Weatherford v.
Bursey, 429 U.S. 545, 559 (1977). Appellant therefore cannot use Brady to bypass
rule 508 or create a new right to discovery.
We overrule appellant’s sub-issues.
D. Ineffective assistance of counsel
Appellant argues, in the alternative, that trial counsel rendered ineffective
assistance by failing to preserve his third issue on appeal. We found that appellant
failed to preserve the hearsay, confrontation, and rule 508 issues. We therefore
understand that appellant claims his trial counsel was ineffective in two instances–
failing to object to Deputy Thompson’s testimonial hearsay and failing to file a
motion to disclose the State’s confidential informant.
To prove ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that: (1) counsel’s representation fell below an
objective standard of reasonableness, based on prevailing professional norms; and
(2) there is a reasonable probability that the result of the proceeding would have
been different but for counsel’s deficient performance. Strickland v. Washington,
466 U.S. 668, 688–92; Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.
1998). When determining whether a defendant was prejudiced, “the question is
whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695.
“Appellant must prove both prongs of Strickland by a preponderance of the
evidence in order to prevail.” Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.
2000).
On appeal, there is a “strong presumption that counsel’s conduct fell within
16
a wide range of reasonable representation.” Salinas v. State, 163 S.W.3d 734, 740
(Tex. Crim. App. 2005). “To overcome the presumption of reasonable professional
assistance, any allegation of ineffectiveness must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness.” Id.
(internal quotation marks omitted). When, as here, the record is silent regarding
trial counsel’s strategy, we will not find deficient performance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Counsel is not required to engage in the filing of futile motions. Wert v.
State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). An
appellant who claims that counsel was ineffective for failing to object during trial
must show that it would have been error for the trial court to overrule the
objection. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (citing
Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996)).
With regard to the rule 508 motion to disclose the informant’s identity,
appellant had to establish that the information from the potential testimony was
necessary to a fair determination of guilt or innocence. See Bridges, 909 S.W.2d at
157 (“[T]he informer’s potential testimony must be shown to significantly aid
appellant, and mere conjecture or supposition about possible relevance is
insufficient” to overcome the State’s assertion of privilege). The record does not
show whether appellant would have met his burden in overcoming the State’s
assertion of privilege. Furthermore, appellant did not allege ineffective assistance
of counsel in a motion for new trial, and the record contains no explanation for
counsel’s conduct. In the face of a silent record, appellant has not overcome the
presumption of reasonable professional judgment. Trial counsel therefore did not
render ineffective assistance by failing to file a motion to disclose the informant’s
17
identity.
We next consider trial counsel’s failure to object during the State’s direct
examination of Deputy Thompson. State’s counsel asked: “So the information you
got was not that somebody was doing drugs, it was specifically that the defendant
was doing drugs?” To which Deputy Thompson responded: “Yes.” We assume,
without deciding, that the State’s question contained inadmissible hearsay to which
trial counsel could have objected and received a favorable ruling. Again, the record
contains no explanation for counsel’s conduct. See Thompson v. State, 9 S.W.3d
808 (Tex. Crim. App. 1999) (because record contained no information as to “why
appellant’s trial counsel failed to object to the State’s persistent attempt to elicit
inadmissible hearsay” defendant “failed to rebut the presumption that this was a
reasonable decision”). This isolated failure to object does not present the sort of
outrageous behavior in which no competent counsel would engage. Ingham v.
State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (“[I]solated failure to object to
. . . improper evidence does not constitute ineffective assistance of counsel.”);
Wert, 383 S.W.3d at 757 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (same).
Even assuming trial counsel’s isolated failure fell below an objective
standard of reasonableness, appellant was not prejudiced by trial counsel’s
conduct. In addressing the prejudice requirement under Strickland’s second prong,
we may consider the totality of the evidence before the jury. Ex Parte Ellis, 233
S.W.3d 324, 331 (Tex. Crim. App. 2007). “Some errors will have . . . a pervasive
effect on the inferences to be drawn from the evidence, altering the entire
evidentiary picture, and some will have . . . an isolated, trivial effect.” Strickland,
466 U.S at 695–96. Appellant contends that he was harmed by admission of the
statement because: the State had not affirmatively linked appellant to the drugs, but
the statement offered a link; the statement was not cumulative of other evidence;
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the statement corroborated the cocaine police found at the house; and that the
State’s case was weak.
When we determined that there was legally-sufficient evidence to convict
appellant of the charged offense, we did not consider the tipster’s statement. That
is, appellant was charged with, and tried for, possession of a controlled substance
based on physical evidence and testimony provided by Deputy Thompson—not
the tipster. Additionally, the statement that “defendant was doing drugs” was of
limited relevance to the State’s case against appellant. The statement was vague as
to which drug, and given that appellant admitted to marijuana use at the house, it
did little to bolster a link to possession of cocaine over the marijuana. Reviewing
appellant’s contentions in light of the totality of the evidence, had the informant’s
statement been suppressed, it would not have created a reasonable doubt that did
not otherwise exist. Having failed to prove either prong under Strickland,
appellant’s claim of ineffective assistance of counsel fails.
III. CONCLUSION
Accordingly, we affirm the judgment of the trial court.
/s/ Marc W. Brown
Justice
Panel consists of Justices Busby, Donovan, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
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