Ricky Lavan Whitley v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-419-CR





RICKY LAVAN WHITLEY,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 0914802, HONORABLE BOB JONES, JUDGE PRESIDING

Appellant was convicted by a jury of the offense of possessing cocaine with the intent to deliver. Punishment enhanced by four prior felony convictions was assessed by the trial court at confinement for 25 years. In his sole point of error, appellant urges that he did not have effective assistance of trial counsel. We will affirm the judgment.

Appellant asserts that although his complaints considered individually would not constitute ineffective assistance, when considered in totality they demonstrate that appellant did not receive effective assistance of counsel. Trial counsel is faulted for failing to obtain a pretrial probable cause for arrest hearing, failing to challenge the qualifications of the chemist who testified as an expert witness, and failing to object to any of the evidence offered by the State.

Austin police officers armed with an arrest warrant, not in uniform and in unmarked vehicles, were looking for Victor Carr, a long-time street corner drug dealer with "a semi-large operation of people working for him." Officers Dennis Clark and Richard Burns were in a pickup truck. Officers Robert Travis and Keith Reynolds were in a "Suburban," following Clark and Burns. Clark was familiar with the area and the house at 2303 Coronado Street in Webberville where they expected to find Carr, since Clark had several times in the past helped execute search warrants at that house. The house was in an area known for high traffic in the sale of controlled substances.

As Clark drove slowly along the street approaching the house in which they expected to find Carr, appellant ran alongside the pickup yelling: "What you want, man? What you want?" Clark thought appellant was attempting to sell him some controlled substance. When appellant reached the pickup door, Jesse Carr, Victor's brother, who was standing in the front yard shouted, "he's the law." Appellant's "eyes got real big and he started backing away." Clark "opened the truck door and tried to grab a hold of [appellant], because he was trying to flee." When Clark grabbed appellant, appellant threw "something into the air." Officer Travis saw appellant "running behind Officer Clark's vehicle . . . running to the driver's side" as Travis stopped the "Suburban" beside Clark's pickup. Travis saw Clark getting out of the pickup and saw appellant "throw a handful of what appeared at the time to be different colored baggies across the hood of Officer Clark's truck." Travis ran over and picked up two baggies on the hood of Clark's truck; they contained a white powder. Travis found and picked up two more baggies on the ground which contained marihuana.

Glenn Harbison, a chemist employed by the Austin Police Department, testified that the baggies submitted to him in this case contained cocaine and marihuana.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of conviction has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test has been adopted in this state Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986); see O'Hara v. State, 837 S.W.2d 139 (Tex. App.--Austin 1992, no pet.).

A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistant; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 416 U.S. at 689. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Strickland, 466 U.S. at 688. A court deciding an ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. Strickland, 466 U.S. at 690. The burden of proving ineffective assistance of counsel by a preponderance of the evidence rests upon the convicted defendant. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); Haynes v. State, 790 S.W.2d 824, 827 (Tex. App.--Austin 1990, no pet.).

Appellant argues that trial counsel "neglected his duty to attempt to have the arrest of the defendant suppressed." The transcript on appeal includes a motion to suppress and the trial court's order which recites: "Came on to be heard Defendant's Motion to Suppress Evidence in the above-styled and numbered cause. After due consideration, it is the opinion of the Court that the motion should be: Denied." The order is signed by the trial judge.

Moreover, the evidence shows appellant was in an area where sellers of controlled substances were competing with each other to make curb side sales. Appellant ran after Officer Clark's pickup hawking his wares -- "What you want, man? What you want?" When appellant was warned that Clark was "the law," appellant attempted to flee, and threw down packets containing cocaine and marihuana. Under these circumstances, trial counsel could have little confidence in a successful attempt to suppress. The facts and circumstances within the officer's knowledge when appellant was placed under arrest were clearly sufficient to warrant appellant's arrest. Furthermore, the cocaine was abandoned by appellant and was not seized as a result of his arrest. California v. Hodari D., 499 U.S. 621 (1991).

Appellant claims that the chemist who testified did not meet the requirements of an expert witness, and that the State did not request that the chemist be designated an expert. Therefore, appellant contends that the opinion of the chemist that the substance found in the baggies was cocaine should not have been admitted, and that trial counsel was ineffective since he did not object. The witness, Glenn Harbison, had a Bachelor of Science degree from the University of Texas. He had attended a Drug Enforcement Administration School concerned with drug analysis and separation. He had been employed for eight years as a chemist identifying drugs for the Texas Department of Public Safety. He had worked for three years as a chemist for the Austin Police Department. Harbison explained spectrophotometry, gas chromatography, and other tests he used to identify cocaine and other substances. The record reflects that Harbison was qualified to give his opinion testimony as an expert. Trial counsel was not ineffective in failing to object to the qualifications of the expert witness.

Appellant's remaining complaint is that trial counsel failed to object to any of the evidence offered during the trial. Appellate counsel fails to designate a single instance when inadmissible evidence was offered to which trial counsel should have voiced an objection. Appellant's argument that the failure to object is therefore unpersuasive.

Trial counsel filed pretrial motions requesting notice of extraneous misconduct evidence, a motion to disclose exculpatory evidence, a motion for discovery, and four separate motions in limine. All motions were presented to the trial court and, for the most part, rulings favorable to appellant were obtained. The trial court appointed two attorneys to defend appellant at trial. Counsel cross-examined the State's witnesses and offered photographs of the area where the offense was committed. Counsel objected several times to State counsel's closing argument. At the punishment hearing before the trial judge, counsel argued that appellant's good military record and other matters merited the court's consideration of minimum punishment of twenty-five years' confinement. The State had offered, and appellant rejected, a plea bargain of confinement for thirty-five years. After trial the State urged punishment of forty-five years' confinement. The punishment assessed was the minimum twenty-five years.

Appellant has failed to show that his trial counsel was ineffective when all of the facts and circumstances are considered. The totality of trial counsel's representation was well above the minimum constitutional standard required by Strickland v. Washington, 466 U.S. 668 (1984), and Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Powers, Kidd and Dally^*

Affirmed

Filed: June 22, 1994

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).