Brandy Smythe A/K/A Brandi Lynn Smythe v. the State of Texas ( 2023 )

Opinion filed June 29, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00238-CR
__________
BRANDY SMYTHE A/K/A BRANDI LYNN SMYTHE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 21096-B
MEMORANDUM OPINION
The jury found Appellant, Brandy Smythe (also known as Brandi Lynn
Smythe) guilty of possession of methamphetamine with intent to deliver, in an
amount by aggregate weight of four grams or more but less than two hundred grams,
a first-degree felony. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West
2017). The trial court assessed Appellant’s punishment at confinement for a term of
five years in the Institutional Division of the Texas Department of Criminal Justice.
1
Appellant challenges her conviction in two issues. In her first issue, Appellant
challenges the sufficiency of the evidence supporting her conviction. In her second
issue, Appellant alleges ineffective assistance of counsel during the guilt-innocence
phase of trial. We affirm.
Background Facts
On June 14, 2017, at around 6:15 p.m., Agent Gary Castillo with the Abilene
Police Department (APD) Narcotics Unit and other APD officers executed a search
warrant at a house in Abilene. The warrant named Grady Cozby, Appellant’s
boyfriend at the time. Appellant was present in the kitchen when the warrant was
executed. Officers gathered Appellant, Cozby, and several other individuals who
were present in the house into the living room. Agent Castillo advised the
individuals of their Miranda 1 rights and gave them an opportunity to surrender any
illegal items before officers searched the house. Agent Castillo then asked each
individual where they lived.2 Appellant was detained, in part, because she told
Agent Castillo she lived at the house.
Throughout the house, officers found illegal substances, drug paraphernalia,
and evidence that methamphetamine was being sold. Roy Dunlap, an individual
present in the house, had marihuana and methamphetamine on his person. In the
basement of the house, officers discovered approximately twenty-five grams of
liquid methamphetamine; syringes; small, clear Ziploc bags that Agent Castillo
testified were often used to package methamphetamine; spoons and a “teacup” with
white residue on them; a scale; a “glasses case” containing used syringes and
marihuana; a small bottle that was used as a “bong” and filled with blue liquid; a
“pipe”; marihuana and a marihuana pipe; and marihuana grinders.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Agent Castillo testified that individuals who are not residents of the house and are not named in
the search warrant are generally able to leave.
2
In the master closet area, officers found a green “makeup bag” on a chair
which contained five syringes and a Ziploc bag with white residue. Officers found
a glass “methamphetamine bong” on a shelf in the master closet. Officers also found
syringes and a straw; a mirror with white residue on it; marihuana; Ziploc bags; and
a piece of mail bearing Appellant’s name and the house’s address in a vanity located
in the master closet area.
Officers also found a notepad containing a pricing ledger detailing the
“current rates” for phrases such as “less than or equal to one gram,” “teen,” “ball,”
and “quarter” located in the master bedroom. Agent Castillo described these words
and phrases as the “street term[s]” for different weights of drugs. Agent Castillo
testified that the prices described for different weights contained in the ledger were
consistent with his knowledge of what methamphetamine typically sold for in the
summer of 2017.
At trial, Appellant testified that she had not been living with Cozby at the time
of her arrest and that she would only stay with him “on occasion.” Appellant
asserted that she had “no idea” there was methamphetamine in Cozby’s house and
that she never saw a methamphetamine sale take place in the house. During cross-
examination, Appellant confirmed that she had a history of using drugs, that she was
currently on deferred adjudication community supervision for a 2017 arrest for
possession of a controlled substance, that she had three previous felony convictions
for drug offenses, and that she had a previous conviction for theft by check.
Analysis
Sufficiency of the Evidence
In her first issue, Appellant contends that there was insufficient evidence to
prove she knowingly possessed methamphetamine. Appellant asserts that,
consequently, there was insufficient evidence to support her conviction, because
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possession of methamphetamine is a lesser-included offense of possession of
methamphetamine with intent to deliver.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight witness testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict and defer to
that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly prove the defendant’s guilt;
circumstantial evidence is as probative as direct evidence in establishing a
defendant’s guilt, and circumstantial evidence can alone be sufficient to establish
guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not
point directly and independently to guilt if the cumulative force of all incriminating
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circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
Because evidence must be considered cumulatively, appellate courts are not
permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the
evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead,
appellate courts must consider the cumulative force of all the evidence. Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
A person is guilty of possession of a controlled substance if he or she
intentionally or knowingly possessed the controlled substance. See HEALTH &
SAFETY § 481.115(a) (West Supp. 2022). The Health and Safety Code defines
possession as “actual care, custody, control, or management.” Id. at § 481.002(38).
To prove unlawful possession of a controlled substance, the State must show that:
(1) the accused exercised control, management, or care over the substance, and
(2) the accused knew the matter possessed was contraband. Poindexter v. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other grounds by
Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015); Hughitt v.
State, 539 S.W.3d 531, 538 (Tex. App.—Eastland 2018), aff’d, 583 S.W.3d 623(Tex. Crim. App. 2019). The evidence must establish that the accused’s connection
with the drugs is more than just his or her fortuitous proximity to someone else’s
drugs. Poindexter, 153 S.W.3d at 405–06; Hughitt, 539 S.W.3d at 538.
Texas courts have formulated the “affirmative links rule,” which provides
that, “[w]hen the accused is not in exclusive possession of the place where the
substance is found, it cannot be concluded that the accused had knowledge of and
control over the contraband unless there are additional independent facts and
circumstances which affirmatively link the accused to the contraband.” Poindexter,
153 S.W.3d at 406 (alteration in original) (quoting Deshong v. State, 625 S.W.2d
327, 329 (Tex. Crim. App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12
(Tex. Crim. App. 2006) (listing affirmative links recognized by courts); see also
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Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016) (citing Evans, 202
S.W.3d at 162 n.12). The affirmative links rule is routinely employed to establish
possession when the accused is not in exclusive possession of the place where the
drugs are found. Poindexter, 153 S.W.3d at 406.
The following links have been applied to infer knowledge relating to the
contraband: (1) the accused’s presence when the search was executed; (2) whether
the contraband was in plain view; (3) the accused’s proximity to and the accessibility
of the contraband; (4) whether the accused was under the influence of a controlled
substance when he was arrested; (5) whether the accused possessed other contraband
or narcotics when arrested; (6) whether the accused made incriminating statements;
(7) whether the accused attempted to flee; (8) whether the accused made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia was present; (11) whether the accused 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 accused was found with
a large amount of cash; and (14) whether the conduct of the accused indicated a
consciousness of guilt. Tate, 500 S.W.3d at 414 (citing Evans, 202 S.W.3d at 162
n.12). It is not the number of links that is dispositive; rather, it is the logical force
of all of the evidence, both direct and circumstantial, that is the determining factor.
Evans, 202 S.W.3d at 162.
Appellant asserts that she was merely an “innocent bystander” who had no
control over, or knowledge of the methamphetamine present in the house. However,
Appellant was dating the owner of the house, and she told Agent Castillo that she
lived in the house. Appellant discounts this statement to Agent Castillo about living
in the house as “uncorroborated.” Officers also found a piece of mail addressed to
Appellant at the house. Appellant discounts this evidence as being only “junk mail.”
The jury was the sole judge of the witnesses’ credibility and the weight to be afforded
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to their testimony. See Brooks, 323 S.W.3d at 899. To the extent that there were
any conflicts in the evidence, we presume that the factfinder resolved the conflicts
in favor of the verdict and defer to that determination. See Jackson, 443 U.S. at 326;
Clayton, 235 S.W.3d at 778.
Appellant was in the house when officers executed the search warrant. There
was methamphetamine in plain view in the basement. Syringes and other drug
paraphernalia were in plain view throughout the house. A ledger indicative of
methamphetamine sales was in plain view in the master bedroom. Marihuana and
marihuana paraphernalia were scattered throughout the house. Appellant admitted
that she knew marihuana was present in the house. Appellant also admitted that she
had a history with drugs and that she had a pending deferred adjudication for
possession of a controlled substance. Accordingly, there were “additional
independent facts and circumstances which affirmatively link[ed]” Appellant to the
methamphetamine. See Poindexter, 153 S.W.3d at 406 (alteration in original)
(quoting Deshong, 625 S.W.2d at 329). The evidence presented at trial was
sufficient to allow a rational jury to conclude that Appellant was in possession of the
methamphetamine found in the house. See id.; see also Jackson, 443 U.S. at 319;
Isassi, 330 S.W.3d at 638.
Because there was sufficient evidence to find that Appellant knowingly
possessed methamphetamine, we now turn to whether there was sufficient evidence
to find that Appellant possessed the methamphetamine with the intent to deliver it
to another. See HEALTH & SAFETY § 481.112(a); Nhem v. State, 129 S.W.3d 696,
699 (Tex. App.— Houston [1st Dist.] 2004, no pet.) (“In a possession with intent to
deliver case, the State must prove that 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 that the substance in his possession
was a controlled substance.”)
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“‘Deliver’ means to transfer, actually or constructively, to another a controlled
substance . . . .” HEALTH & SAFETY § 481.002(8). An intent to deliver may be
proved by circumstantial evidence, including evidence that the defendant possessed
the contraband. Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th
Dist.] 2006, pet. ref’d). “Intent can be inferred from the acts, words, and conduct of
the accused.” Id. at 326 (quoting Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.
App. 1995)). The expert testimony of an experienced law enforcement officer may
be used to establish an accused’s intent to deliver. Id. The factors to be considered
in determining whether a defendant possessed contraband with an intent to deliver
include the nature of the location where the defendant was arrested, the quantity of
drugs the defendant possessed, the manner of packaging the drugs, the presence or
absence of drug paraphernalia, whether the defendant possessed a large amount of
cash, and the defendant’s status as a drug user. Kibble v. State, 340 S.W.3d 14, 18–
19 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Moreno, 195 S.W.3d at 325;
see Guttery v. State, No. 11-12-00160-CR, 2014 WL 3398144, at *3 (Tex. App.—
Eastland July 10, 2014, pet. ref’d) (mem. op., not designated for publication). These
factors are not exclusive, nor must they all be present to establish a defendant’s intent
to deliver. Kibble, 340 S.W.3d at 19.
Appellant was arrested in a house that was the subject of a search warrant
executed by the APD Narcotics Unit. At the time of her arrest, Appellant told
officers that she lived at the house. Numerous other individuals who did not live at
the house were present when the search warrant was executed—one of which had
methamphetamine on his person. Approximately twenty-five grams of
methamphetamine was recovered from the house. Dirty syringes, which Agent
Castillo testified could be used to provide users with a “loaded point”—a
premeasured amount of methamphetamine—were found in numerous locations
throughout the house. Ziploc bags, which Agent Castillo testified are typically used
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to package methamphetamine for distribution, were also found in numerous
locations throughout the house. A ledger classifying the price of different weights
of drugs was found in the master bedroom of the house. Drug paraphernalia was
scattered throughout the house. Additionally, Appellant testified that she had a
history of controlled substance abuse. As such, we conclude that there was sufficient
evidence to allow a rational jury to determine that Appellant had the intent to deliver
the methamphetamine that she possessed. See Jackson, 443 U.S. at 319; Isassi, 330
S.W.3d at 638. We overrule Appellant’s first issue.
Claim of Ineffective Assistance of Counsel
In her second issue, Appellant asserts that her trial counsel was ineffective
for failing to object to the State impeaching her during the guilt/innocence phase of
trial with her prior criminal history. See TEX. R. EVID. 609(a). Appellant contends
that allowing the jury to hear inadmissible evidence about her criminal history
substantially injured her reputation because her criminal history “emphasized her
propensity to use drugs which, given the offense she was charged with, greatly
influenced the jury’s verdict.”
At trial, Appellant confirmed on cross-examination that she had a 2006
conviction for possession of a controlled substance, two 2009 convictions for
possession of a controlled substance, a 2009 conviction for theft by check, and that
she was currently on deferred adjudication community supervision for a 2017 arrest
for possession of a controlled substance. The State’s cross-examination of Appellant
concluded with the prosecutor asking her “[s]o you have a pretty good history with
controlled substances?” to which she replied in the affirmative.
To establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex.
9
Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Strickland, 466 U.S. at 694. There is a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and the defendant must overcome the presumption that the challenged action could
be considered sound trial strategy. Id. at 689.
A claim of ineffective assistance of counsel “must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a
claim because the record is generally undeveloped. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when
counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily
have an opportunity to explain his actions before an appellate court denounces
counsel’s actions as ineffective. Id. Without this opportunity, an appellate court
should not find deficient performance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Id. (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim App. 2001)).
Appellant contends that her trial counsel should have objected to the
introduction of her criminal history under Rule 609 of the Texas Rules of Evidence.
See TEX. R. EVID 609. Appellant contends that her prior convictions and current
deferred adjudication were inadmissible under Rule 609 because: (1) the convictions
discussed occurred more than ten years prior to trial and her deferred adjudication
was not a final conviction; and (2) the probative value of the convictions and
deferred adjudication did not outweigh their prejudicial effect to Appellant.
“In order to succeed with an ineffective-assistance-of-counsel claim based on
counsel’s failure to object, one ‘must show that the trial judge would have committed
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error in overruling such objection.’” Ex parte Parra, 420 S.W.3d 821, 824–25 (Tex.
Crim. App. 2013) (quoting Ex Parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.
App. 2011)). Ordinarily this would require an examination of whether the trial court
would have erred had the trial court overruled the objection that the appellant asserts
trial counsel should have raised. Ex parte Parra, 420 S.W.3d at 824–25. But here,
Appellant did not file a motion for new trial alleging that trial counsel was ineffective
or otherwise develop a record in the trial court to substantiate her claims. See
Freeman v. State, 125 S.W.3d 505, 506–507 (Tex. Crim. App. 2003) (citing
Thompson, 9 S.W.3d at 815). Thus, trial counsel has not had an opportunity to
explain or defend his trial strategy in response to the matters that Appellant contends
were deficient. See Thompson, 9 S.W.3d at 814 (the first prong of Strickland test
was not satisfied where “the record provide[d] no reference to explain why counsel
chose not to object[] or failed to object.”); West v. State, 474 S.W.3d 785, 790 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (citing Goodspeed, 187 S.W.3d at 392)
(“Ordinarily, trial counsel should be afforded an opportunity to explain his or her
actions, and in the absence of such opportunity, an appellate court should not find
deficient performance unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.”); see also McCook v. State, 402
S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (without a
sufficient record, it is unclear whether, as trial strategy, “counsel may have allowed
the testimony in an effort to make [Appellant] appear more honest and truthful, to
avoid drawing unwanted attention to the impeachment, or to prevent the impression
that he was . . . stonewalling evidence.”).
A claim of ineffective assistance of counsel “must be firmly founded in the
record.” Thompson, 9 S.W.3d at 814. “Under Thompson, a claim of ineffective
representation must be supported by a record containing direct evidence as to why
counsel took the action(s) or made the omission(s) relied upon as the basis for
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constitutionally deficient performance.” George E. Dix & John M. Schmolesky, 42
Texas Practice: Criminal Practice and Procedure § 29:76 (3d ed. 2022) (Effective
representation—Need to establish actual basis for challenged decisions of counsel).
Here, trial counsel has not been afforded an opportunity to explain why he did not
make an objection under Rule 609. The State contends that trial counsel might have
had a reasonable trial strategy for not objecting to Appellant’s remote convictions
and the deferred adjudication. In response, Appellant asserts that there is no
reasonable trial strategy in her trial counsel’s failure to object to questions about her
criminal history because her convictions and deferred adjudication were clearly
inadmissible impeachment evidence.
In the absence of a contemporaneous objection, the record does not contain a
statement by the prosecutor of other possible reasons for offering Appellant’s prior
drug convictions other than impeachment under Rule 609. In post-submission
briefing, the State suggests that the prosecutor might have sought to offer the
evidence to rebut a defensive theory “that [Appellant] had no knowledge of drug
sales in the home despite drugs, paraphernalia and syringes in open and full view.”
In this regard, Appellant testified on direct examination as follows:
Q. Did you know that there was any methamphetamine anywhere in
the house?
A. I had no idea.
As noted previously, evidence relating to methamphetamine use and
distribution was located throughout the house; Appellant’s criminal history
concerning methamphetamine possession was relevant and probative to show her
knowledge of the methamphetamine inside the house and to rebut her statement
made on direct examination that she “had no idea” methamphetamine was there and
that she “had no idea” about others selling drugs. See Powell v. State, 63 S.W.3d
435, 438 (Tex. Crim. App. 2001) (evidence may be admissible “when it is relevant
12
to a noncharacter conformity fact of consequence in the case, such as rebutting a
defensive theory.”); see also TEX. R. EVID. 404(b)(2) (evidence of other crimes or
acts may be admissible to prove knowledge, absence of mistake, or lack of accident).
The appellate record must affirmatively demonstrate the deficient
performance that constituted ineffective assistance of counsel. Thompson, 9 S.W.3d
at 813. “In the majority of instances, the record on direct appeal is simply
undeveloped and cannot adequately reflect the failings of trial counsel.” Id. at 813-
14. Here, without an explanation from trial counsel regarding his motivations and
strategies at trial, the record does not overcome the strong presumption that his
conduct fell within the wide range of reasonable professional assistance. See id. at
813. Simply put, on the undeveloped record before us, trial counsel’s conduct was
not “so outrageous that no competent attorney would have engaged in it.” See
Goodspeed, 187 S.W.3d at 392. We overrule Appellant’s second issue.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
June 29, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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