Jose Martinez v. State

i i i i i i
MEMORANDUM OPINION
No. 04-07-00776-CR
Jose MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Atascosa County, Texas
Trial Court No. 06-09-00240-CRA
Honorable Donna S. Rayes, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: March 11, 2009
AFFIRMED
Jose Martinez appeals his conviction for possession of methamphetamine with intent to
deliver. Martinez challenges the sufficiency of the evidence to support the jury’s findings and
contends that he received ineffective assistance of counsel. We affirm the trial court’s judgment.
04-07-00776-CR
BACKGROUND
Corporal Matthew Dear, a seven year veteran in law enforcement, was dispatched for a fight
in progress at the corner of an intersection. Corporal Dear recognized the intersection as being in the
location where Mark Carter lived. Carter was known for dealing and using methamphetamine. As
Corporal Dear arrived in the area, he observed a truck with three men seated in the cab and two men
seated in the back who appeared sweaty. Corporal Dear stopped the truck, believing the men had
been involved in the reported fight.
Before Corporal Dear could exit his vehicle, Martinez jumped out of the back of the truck and
approached him. In response to whether he was involved in the fight up the road, Martinez stated it
was not a fight – it was a disturbance, indicating that he had been present. Martinez was nervous.
Corporal Dear told Martinez to place his hands on the truck, intending to pat him down for weapons.
Before Corporal Dear was able to pat Martinez down, Martinez pulled his hands away from the truck.
Corporal Dear placed Martinez in a hold, but Martinez was able to reach into his front pocket, retrieve
an object, and throw it across the hood of the truck into the grass on the other side of the road.
Another officer recovered the object which Corporal Dear identified as a methamphetamine pipe.
Martinez was then arrested for possession of drug paraphernalia. When Corporal Dear searched
Martinez incident to his arrest, he recovered a small bag of methamphetamine from Martinez’s
pocket. Another bag of methamphetamine was subsequently recovered from an area between the
hood and the windshield of the truck where Martinez initially placed his hands.
The other four individuals in the truck also were placed in handcuffs and detained; however,
none of those individuals had drug paraphernalia or methamphetamine on their persons. Several of
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the individuals did, however, have large sums of cash in the amounts of $918.85, $1,520.77,
$2,769.32, and $3,682.61. The individuals stated they were intending to purchase a four-wheeler.
The driver of the truck, Francisco Medina, consented to its search. In searching the truck, a
dog food container with a false bottom was recovered that contained methamphetamine. Martinez
told the officers that he used that container to smuggle narcotics across the river. Two additional
methamphetamine pipes were also recovered from underneath the driver’s seat in the truck. Corporal
Dear also found bags in a hidden compartment inside the back seat door panel containing a large
amount of methamphetamine. Corporal Dear testified that this was his largest methamphetamine
seizure. In addition to the methamphetamine, a roll of ziploc bags were recovered. Corporal Dear
testified that the ziploc bags could be used to package the methamphetamine into smaller amounts
to be sold. Corporal Dear testified that one of the bags recovered from the hidden compartment
contained methamphetamine weighing almost 100 grams, a second bag contained 250 grams of a
substance that did not test positive as a controlled substance, and a third bag contained
methamphetamine weighing 150 grams. Corporal Dear testified that defendants arrested for
possession of a controlled substance for personal use typically possess under a gram of the controlled
substance. With regard to the second bag, Corporal Dear testified that when methamphetamine is
packaged for sale, dealers often use a cutting agent to make more money. Corporal Dear testified that
the amount of narcotics indicated an intent to distribute and sell them. In addition, a scale was
recovered from the truck which commonly is used to weigh out smaller amounts of narcotics to sell.
At the scene, Martinez only admitted to possessing the methamphetamine found on his person;
however, in the statement he gave at the police station, he admitted to possessing all of the
methamphetamine found in the truck. Corporal Dear could not recall whether Martinez was
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transported from the scene to the police station with one of the other individuals. Corporal Dear
acknowledged that Martinez might have had the opportunity to speak with one or more of the
individuals during transportation to and at the police station.
Officer Mark Montgomery, a six year veteran in law enforcement, was dispatched to assist
Corporal Dear. Officer Montgomery also identified the bags of methamphetamine recovered from
the truck. Officer Montgomery stated that he did not witness Martinez and Medina talking. Officer
Montgomery admitted that Martinez and Medina were in close contact at the police station.
Martinez testified that Medina and three men from Mexico approached him about buying four-
wheelers. Martinez stated that he took them to Mark Carter’s house where Martinez kept two four-
wheelers. Upon arriving, Martinez became angry upon learning that Carter had pawned his four-
wheelers. Martinez asked for Medina’s phone to call the police, but Medina did not give him the
phone. Martinez stated that he did not think about the pipe and methamphetamine in his pocket when
he wanted to call the police.
When Martinez saw Corporal Dear, he testified that he jumped out of the truck to tell him
about the four wheelers. Martinez admitted that he was in possession of the pipe and a small bag of
methamphetamine that Medina had given him before they left his house to go to Carter’s house.
Martinez testified that he was unaware of the methamphetamine in the truck and only signed the
statement taking the blame because Medina threatened him and his family. Martinez admitted that
after being released from jail for the underlying offense, he was arrested approximately one month
later for possession of 13 grams of methamphetamine and for possession of a gun. Martinez stated
that the gun belonged to Medina. Martinez stated that he had loaned his truck to Medina after he was
released from jail because Medina’s truck had been seized.
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SUFFICIENCY OF THE EVIDENCE
In reviewing the legal sufficiency of the evidence to support a criminal conviction, we
consider all of the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979);
Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In conducting a factual sufficiency
review, this court views all of the evidence in a neutral light and sets aside the verdict only if: (1) the
evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against
the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.
App. 2000). In reviewing the factual sufficiency of the evidence, we “must be cognizant of the fact
that a jury has already passed on the facts and must give due deference to the determinations of the
jury.” Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008).
A. Possession
One of the elements of the offense that the State was required to prove was that Martinez
exercised actual control, management or care over the controlled substance. Evans v. State, 202
S.W.3d 158, 161 (Tex. Crim. App. 2006). “Regardless of whether the evidence is direct or
circumstantial, it must establish that the defendant’s connection with the drug was more than
fortuitous.” Id. “Mere presence at the location where drugs are found is [ ] insufficient, by itself, to
establish actual care, custody, or control.” Id. at 162. “However, presence or proximity, when
combined with other evidence, either direct or circumstantial (e.g., ‘links’), may well be sufficient
to establish that element beyond a reasonable doubt.” Id. The following is a non-exclusive list of
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factors that have been considered in determining whether a defendant is linked to a controlled
substance: (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. Id. at 162 n.12; see also Hargrove v. State, 211 S.W.3d
379, 385-86 (Tex. App.—San Antonio 2006, pet. ref’d). It is not the number of links that is
dispositive, but rather the logical force of all of the evidence, direct and circumstantial. Evans, 202
S.W.3d at 162.
Applying the foregoing factors to the evidence presented in this case: (1) Martinez was
arrested after jumping from the back of the truck which Corporal Dear testified was likely an effort
to detract his attention from the truck; (2) Martinez was present when the search was conducted;
(3) contraband was recovered from Martinez’s pocket, from between the windshield and the hood of
the truck where Martinez placed his hands, and from a hidden compartment inside the truck; (4)
Martinez admitted that the dog container with the false bottom was his; (5) Martinez made an
incriminating statement stating the he was in possession of all of the contraband; (6) Martinez
testified that he made the incriminating statement due to Medina’s threats but Martinez subsequently
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loaned his truck to Medina after he was released from jail; and (7) Martinez made furtive gestures and
threw a methamphetamine pipe that he retrieved from his pocket. The logical force of all of the
evidence presented is sufficient to support the jury’s finding that Martinez was in possession of the
methamphetamine.
B. Intent to Deliver
Intent to deliver is a question of fact for the jury to resolve. Patterson v. State, 138 S.W.3d
643, 649-50 (Tex. App.—Dallas 2004, no pet.). Intent to deliver can be proven by circumstantial
evidence and may be inferred from acts, words, or conduct of the accused. Utomi v. State, 243
S.W.3d 75, 82 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Patterson, 138 S.W.3d at 650.
Factors a court may consider in determining whether the accused had the intent to deliver include:
(1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the
accused’s possession; (3) the manner of packaging; (4) the presence, or lack thereof, of drug
paraphernalia for either use or sale; (5) the accused’s possession of large amounts of cash; and (6) the
accused’s status as a drug user. Utomi, 243 S.W.3d at 82. Expert testimony by experienced law
enforcement personnel may also be used to establish an accused’s intent to deliver. Id. at 82-83.
Applying these factors to the evidence presented in this case: (1) Martinez was arrested after
a fight at a location where a known drug user or dealer lived; (2) Martinez was in possession of
hundreds of grams of methamphetamine and another substance used as a cutting agent for packaging
the methamphetamine for sale; (3) a scale and baggies were also recovered; (4) Corporal Dear
testified that the quantity of methamphetamine was the largest he had ever seized and the quantity
indicated it was to be distributed and sold; and (5) after being released from jail in relation to the
instant offense, Martinez was subsequently arrested with additional amounts of methamphetamine.
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The evidence is legally and factually sufficient to support the jury’s finding that Martinez possessed
the methamphetamine with an intent to deliver.
INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate, by
a preponderance of the evidence, that: (1) counsel’s performance was so deficient as to fall below an
objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). There is a strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance. Thompson, 9 S.W.3d at 813. Any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Id.
Martinez asserts trial counsel was ineffective because he failed to: (1) file pretrial motions;
(2) request certain jury instructions; (3) make proper objections to the admission of extraneous
offense conduct; and (4) ask certain questions on voir dire. Trial counsel, however, was never
afforded an opportunity to explain his actions at an evidentiary hearing on a motion for new trial.
Absent such an 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.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). None of trial counsel’s acts or
omissions challenged by Martinez can be described as “outrageous.” For example, the failure to file
pre-trial motions and the failure to ask questions on voir dire are not categorically considered to be
ineffective assistance of counsel. Goodspeed, 187 S.W.3d at 392-93; Saenz v. State, 103 S.W.3d 541,
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545 (Tex. App.—San Antonio 2003, pet. ref’d). Because the record is silent, we will not speculate
regarding the reasons for trial counsel’s actions and decisions. Ramirez v. State, 229 S.W.3d 725, 731
(Tex. App.—San Antonio 2007, no pet.). Accordingly, Martinez has failed to rebut the presumption
that counsel provided reasonable professional assistance. Thompson, 9 S.W.3d at 813. This opinion
does not preclude Martinez from raising his ineffective assistance claim in an application for
post-conviction writ of habeas corpus. See Thompson, 9 S.W.3d at 814-15 (noting recourse available
for ineffective assistance of counsel claims via an application for writ of habeas corpus).
CONCLUSION
The trial court’s judgment is affirmed.
Karen Angelini, Justice
DO NOT PUBLISH
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