Raul Jacobo Castaneda v. State

IN THE

TENTH COURT OF APPEALS

No. 10-03-00223-CR

No. 10-03-00224-CR

Raul Jacobo Castaneda,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 292nd District Court

Dallas County, Texas

Trial Court Nos. F02-21065-V and F02-21066-V

MEMORANDUM  Opinion

Raul Castaneda pled not guilty to the charged offenses of delivery of methamphetamine and possession with intent to deliver methamphetamine.  A jury convicted him of both offenses and responded affirmatively to the deadly weapon special issue.  The trial court set punishment at 35 years’ imprisonment for each offense.  Castaneda’s sole issue is that he received ineffective assistance of counsel, who failed to: (1) file timely motions; (2) object to the deadly weapon special issue in the guilt-phase of trial; (3) move to suppress evidence of the guns seized; and (4) object to testimony that he claimed invited the jury to convict him based on his ethnicity.  We will overrule Castaneda’s single issue and affirm the judgment.

BACKGROUND

Houston police arrested Pedro Madrigal for possession of about three pounds of methamphetamine. Madrigal cooperated with police and provided the name of his supplier, Javier Molina, in Dallas.  It is undisputed that Javier Molina is Raul Castaneda.  Madrigal arranged for his wife and an undercover officer to meet with Castaneda to purchase one pound of methamphetamine.  The material they purchased field-tested positive for methamphetamine and weighed about one pound.  A second purchase of 8-10 pounds was arranged with the intent to arrest Castaneda.  Madrigal’s wife went to Castaneda’s apartment alone, confirmed methamphetamine was there, and accompanied Castaneda to another location to receive money from the undercover officer.  Police pulled Castaneda over before he reached his destination; he was driving a white Ford Mustang that was registered to someone else.  Castaneda refused to consent to a search of the apartment but was arrested and transported back to the apartment.  Police then obtained a search warrant for the apartment. Castaneda did give verbal consent for a search of a white pickup truck parked near the apartment, but he said he did not own it.[1]  The truck’s registration listed one of the owners as Javier Molina.  The police searched the apartment and truck and found two loaded handguns, pictures of Castaneda with the same handguns, documents reflecting money transfers to Mexico, $6,000 in cash, components used in the packaging and distribution of methamphetamine, a digital scale, a press, and more than 31 pounds of methamphetamine.

INEFFECTIVE ASSISTANCE OF COUNSEL

Castaneda’s sole issue questions the effectiveness of his trial counsel.

Standard of Review

We must adhere to the United States Supreme Court’s two-pronged Strickland test to determine whether counsel’s representation was so inadequate as to violate a defendant’s Sixth Amendment right to counsel.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  Strickland requires a defendant to show that: (1) counsel’s representations fell below an objective standard of reasonableness and (2) counsel’s deficient performance prejudiced the defendant.  Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S. Ct. 1029, 1034, 135 L. Ed. 2d 985 (2000); Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.  Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.  Strickland, 466 U.S. at 700, 104 S. Ct. at 2071.

When reviewing a claim of ineffective assistance of counsel, there is a strong presumption that defense counsel’s conduct was reasonable and constituted sound trial strategy.  Id. at 689, at 2065.  The appellant has the burden to overcome this presumption.  Id.  To prove prejudice, the appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Id. at 694, at 2068.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Id.

The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.  Thompson, 9 S.W.3d at 813.  Absent record evidence, we must not speculate as to trial counsel’s strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  If the record is silent as to counsel’s trial strategy, we will “not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.”  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)).

Failure of counsel to make a frivolous objection is not ineffective assistance.  Moore v. State, 4 S.W.3d 269, 275 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Also, failure of counsel to object to admissible evidence is not ineffective assistance.  Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d).  To prevail on a claim of ineffective assistance of counsel for failure to file a motion to suppress evidence from a search, the record on direct appeal must affirmatively prove appellant’s motion to suppress would have been granted.  Jackson v. State, 972 S.W.2d 954, 957 (Tex. Crim. App. 1998).

Untimely Motions

1. Request for contraband for testing

Trial counsel requested production of the contraband for testing.  During the pre-trial hearing, the trial court noted that the request was untimely, so trial counsel withdrew the request. Castaneda argues ineffective assistance solely because the request was late.  The State argues that even though the request was late, there was no prejudice to Castaneda because he does not contest the sufficiency of the evidence that he possessed the amounts of methamphetamine as charged in the indictments.

Castaneda was charged with possession and intent to deliver over 400 grams of methamphetamine.  The lab results revealed 14,405.37 grams that tested positive for methamphetamine, including adulterants and diluents.  Because Castaneda does not challenge the sufficiency of this evidence, it does not appear that additional testing would have affected the proof of the elements of the offenses.  We need not determine whether counsel’s performance was deficient before examining the prejudice it may have caused.  Strickland, 466 U.S. at 699, 104 S. Ct. at 2069.  Thus, even if we assume that the late filing of this motion was unreasonable, we find no prejudice to Castaneda because there is no reasonable probability that had the motion been timely filed the outcome of the trial would have been any different. See id., at 694, at 2068.

2. Motion to order 404(b) notice

To require the State to provide reasonable notice of extraneous conduct it intends to introduce in its case-in-chief, a defendant may either move the court to order the State to provide notice or he may request notice directly from the State.  Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993).  If a request is served directly on the State, it is self-executing; no further action is required by the trial court.  Id. at 38. However, if a defendant files a motion requesting court action, the State's duty to provide reasonable notice is not triggered until the trial court rules on the motion.  Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Espinosa, 853 S.W.2d at 39.

The day before the trial began, counsel filed a “Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct” under Article 37.07, section 3(g) of the Texas Code of Criminal Procedure and Rule 404(b) of the Texas Rules of Criminal Evidence. Because an order was attached to this document and there is no certificate of service showing service on the State, we consider this hybrid motion/request to be a “motion” for purposes of article 37.07, section 3(g) and Rule 404(b).  See Valle v. State, 950 S.W.2d 413, 415 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (holding “Defendant's Request for Notice of State's Intention to Introduce Evidence of Other Crimes, Wrongs or Acts” was substantively a motion to the court to order the State to give requisite notice); President v. State, 926 S.W.2d 805, 807-08 (Tex. App.—Austin 1996, pet. ref'd) (same).  Therefore, the notice requirement would not have been triggered until the court ruled on the motion.  Mitchell, 982 S.W.2d at 427.

The motion asked the court to order the State to give notice, at least 30 days before trial, of any extraneous conduct the State intends to introduce as evidence.  This motion was considered at the pre-trial hearing the day before trial, and the trial court noted that the request was late.  However, the State did inform the court that there was no extraneous conduct to be introduced.  The court did not grant, deny, or set a hearing on the motion.  The court wrote “NONE” on the order attached to the motion and signed the order.

Castaneda argues ineffective assistance solely because the request was late. The State argues that there was no prejudice because there was no extraneous conduct introduced at trial.

We need not determine whether counsel’s performance was deficient before examining the prejudice it may have caused.  Strickland, 466 U.S. at 699, 104 S. Ct. at 2069.  Thus, even if we assume that the failure to make a timely request for notice of extraneous conduct was unreasonable,[2] we find no prejudice to Castaneda because the State informed Castaneda at the pre-trial hearing that no extraneous conduct was going to be offered and no extraneous conduct was introduced at trial. The result of the trial would not have been any different had notice been received earlier that there was no extraneous conduct the State intended to offer at trial.  Id. at 694, at 2068. 

3. Motion for production of business records

Trial counsel made a motion for production of business records.  Even though the motion was untimely, the State produced the only business records it planned to introduce at trial, which were vehicle registrations.  Castaneda argues ineffective assistance solely because the request was late.  The State argues there was no prejudice because Castaneda received the requested records before trial.

We need not determine whether counsel’s performance was deficient before examining the prejudice it may have caused.  Id. at 699, at 2069.  Thus, even if we assume that the late filing of this motion was unreasonable, we find no prejudice to Castaneda.  Because the only business records introduced by the State at trial were produced to Castaneda at the pre-trial hearing, there is no reasonable probability that had the motion been timely filed the outcome of the trial would have been any different.  See id. at 694, at 2068.

Having found that Castaneda has failed to meet the Strickland test for his three arguments regarding untimely motions, we overrule his issue as to the untimely motions.

Other Omissions

1. Failure to object to deadly weapon special issue during guilt-phase of trial

Neither of the State’s indictments mentioned the use of a deadly weapon nor was notice provided by the State that it would seek a deadly weapon finding. During voir dire, the State informed the jury, without objection, that it “has given notice to the defense that it intends to seek the finding of a deadly weapon with respect to the possession with intent case.”  The State then discussed with the jury why someone might have a deadly weapon while engaged in this type of criminal conduct.

During trial, the State introduced photographs of the two guns and photographs of the drug-related items seized.  Testimony revealed that the guns were photographed to show the violent nature of drug dealers.  Castaneda’s counsel objected on the grounds of relevancy, which the court overruled. Testimony also revealed that both guns were loaded.  A detective testified that, based on his experience as a narcotics officer, firearms have a role in protecting drug traffickers and intimidating buyers.

The trial court submitted a special issue to the jury at the end of the guilt phase of the trial:

Do you find beyond a reasonable doubt that the Defendant RAUL JACOBO CASTANEDA  used or exhibited a deadly weapon, to wit: a firearm, during the commission of the offense of possession with intent to deliver a controlled substance, to wit: Methamphetamine, as alleged in the indictment.

The jury answered affirmatively.  This finding was used during the punishment phase of trial.

Castaneda argues that a deadly weapon special issue should be determined by the trier of fact at punishment.  Castaneda also argues that this special issue was prejudicial because there was no evidence that he used the guns to further his drug dealing or that either gun was in the apartment on that date.  He asserts that other people had access to the apartment and could have left the guns there and that if he had intended to use the gun to further his drug activities, he would have taken it with him when he went to transact the sale. He argues that his counsel could have made relevance and Rule 403 objections.

The State argues that it is not improper to have a deadly weapon special issue during the guilt-phase of trial and an objection on this basis would have been frivolous.  The State also argues that the evidence of the guns was relevant to show that Castaneda was engaged in drug trafficking; therefore, the trial court properly overruled trial counsel’s relevance objection.  Also, the State asserts that because the guns are just one type of tool used in the drug trade, their probative value was not outweighed by any danger of unfair prejudice.

The Texas Court of Criminal Appeals has said the deadly weapon special issue can be submitted at either the guilt-phase of trial or the punishment stage.  Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985).  It, however, has stated that the “better practice is to submit the deadly weapons special issue charge at the guilt/innocence phase of the trial.”  Hill v. State, 913 S.W.2d 581, 586 (Tex. Crim. App. 1996).  In possession cases, a weapon is “used” when it is found in close proximity to drugs because the weapon protects the defendant’s care, custody, and management of the contraband.  Gale v. State, 998 S.W.2d 221, 224 (Tex. Crim. App. 1999).

Because the gun evidence was admissible and it is not improper to submit this special issue during the guilt-phase of trial, counsel could have reasonably perceived that an objection to the issue would have been fruitless.  See Hill, 913 S.W.2d at 586; Gale, 998 S.W.2d at 224; Moore, 4 S.W.3d at 275; Cooper, 707 S.W.2d at 689. Counsel was within bounds of professional competence in not making such an objection, and Castaneda has failed to overcome the presumption of reasonableness based on the record.  See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.  Therefore, we overrule Castaneda’s issue as to the failure to object to the deadly weapon special issue during the guilt-phase of trial.

2. Failure to move to suppress guns seized

Police seized the guns in the apartment through a search warrant.  To obtain the search warrant, the State presented an affidavit that alleged Castaneda was in possession of items constituting “evidence of illegal manufacturing and distribution of methamphetamine.”

Castaneda argues that the guns were obtained outside the scope of the warrant because it did not authorize the seizure of lawfully possessed guns and there is no evidence that the guns were used in the commission of the offense. He contends they are not instrumentalities of the offense and had his trial counsel filed a motion to suppress, they would not have come before the jury.

The State argues that Castaneda has not shown that a motion to suppress the guns, if made, would have been granted.  The State contends that the guns are instrumentalities of the charged offense because the proximity of the guns to the contraband demonstrates they were “used” to further his drug dealings and constitute evidence of his drug trafficking.

We find that the guns seized would be admissible because they were “used” during the commission of the possession offense.  See Gale, 998 S.W.2d at 224.  Castaneda has failed to meet the Strickland test because he has failed to point to evidence in the record to show that if a motion to suppress had been filed, it would have been granted.  See Jackson, 972 S.W.2d at 957.  Therefore, we overrule Castaneda’s issue as to failure to move to suppress the evidence of the guns.

3. Failure to object to testimony regarding his ethnicity

Castaneda was linked to two vehicles, which displayed decals that read “Purro Michoacan.”  The State presented the testimony of four narcotics officers who stated that Michoacan is a state in Mexico where large quantities of methamphetamine are produced and shipped to the United States.

Castaneda argues that the testimony from the State’s witnesses led the jury to believe that people from Michoacan are drug traffickers by nationality.  He argues that his trial counsel failed to object that these comments violated his equal protection and due process rights and therefore failed to preserve a complaint for appeal.  He contends that had his trial counsel made these objections, the State would have been prevented from portraying him as “a dishonest Mexican who was from a cesspool of drug dealers.” 

The State argues that this testimony was presented to show that the Mexican state is likely a source of Castaneda’s contraband and not to show that he was from Michoacan and therefore guilty because of his nationality.  The State contends that an objection to this testimony would have been frivolous.

“Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.”  Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291, 98 S. Ct. 2733, 2748, 57 L. Ed. 2d 750 (1978).

Texas rules require defendants to object at trial in order to preserve complaints for review on appeal.  The Texas Court of Criminal Appeals, despite a confession of error to the United States Supreme Court by the Texas Attorney General and a remand from the United States Supreme Court, specifically held that “a defendant’s failure to object to testimony prevents his raising on appeal a claim that the testimony was offered for the sole purpose of appealing to the potential racial prejudices of the jury.”  Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002).  In Saldano, a clinical psychologist testified “that blacks and Hispanics are over-represented in the criminal justice system” and that the appellant, an Argentinean, “would be considered a Hispanic.” Id. at 885. Since appellant’s counsel did not object to this testimony, the court held that any complaint was not preserved for appellate review.  Id. at 885, 890. However, the court did note a recent holding in Garcia v. State that when defense counsel presented evidence to the jury through the same clinical psychologist that “blacks and Hispanics are overrepresented in the . . . so-called dangerous population,” counsel’s performance did not fall below an objective standard of reasonableness.  Saldano, 70 S.W.3d at 885-86 (citing Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001)).  In Garcia, the court held that “[c]ounsel might have been attempting with [the clinical psychologist’s] testimony, to do two things: (1) place before the jury all the factors it might use against appellant, either properly or improperly, in its assessment of his future dangerousness and (2) persuade the jury that, despite all those negative factors, appellant would not be a future danger if imprisoned for life because the prison system’s procedures and techniques would control or eliminate his tendency toward violence.” Garcia v. State, 57 S.W.3d 436, 440-41 (Tex. Crim. App. 2001).

In United States v. Doe, the prosecutor called an expert witness who was allowed to describe, over defense counsel’s objection: (1) the “modus operandi” of Jamaican drug dealers; (2) that the Jamaicans have had a phenomenal impact on the drug trade in the District of Columbia; and (3) that Jamaicans had taken over the local drug market by commandeering the apartments of Washingtonians and using them as preparation and distribution centers.  United States v. Doe, 903 F.2d 16, 18 (D.C. Cir. 1990).  The prosecutor in summation also referred to the defendants as Jamaicans and stressed this expert’s testimony.  Id.  The D.C. Circuit Court stated that “discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.”  Id. at 21.  It also stated that “[b]ecause of the risk that the factor of race may enter the criminal justice process, we have engaged in ‘unceasing efforts’ to eradicate racial prejudice from our criminal justice system.”  Id. (citing McCleskey v. Kemp, 481 U.S. 279, 309, 107 S. Ct. 1756, 1775, 95 L. Ed. 2d 262, 289 (1987) (citing Batson v. Kentucky, 476 U.S. 79, 85 (1986))).  The court then held that distinctions based on ancestry are as “odious” and “suspect” as those predicated on race because appeals to either threaten the fairness of a trial.  Id. at 21-22. The court refused to “quibble,” as did the State, over whether the remarks about Jamaicans referred strictly to race, because they felt it “simply does not matter.”  Id. at 21.

In United States v. Vue, appellants of Hmong descent challenged the trial court’s admission of testimony related to the likelihood that persons of Hmong descent are involved in opium smuggling. United States v. Vue, 13 F.3d 1206, 1211 (8th Cir. 1994).  Some of the testimony included statements by a customs supervisor referring to “a Hmong opium smuggling parcel” and that “there are other populations of individuals from Southeast Asia in the Twin Cities area, but primarily the opium smuggling cases we have identified or we’ve investigated relate to Hmong individuals.”  Id. at 1212. The Eighth Circuit Court reversed appellants’ convictions because “after having read and reread the transcript of all of the questioning of [the customs supervisor], we cannot say either that the error in allowing the introduction of the evidence objected to – the likelihood of the involvement in opium smuggling of persons of Hmong descent – was harmless beyond a reasonable doubt, . . . or that we do not have grave doubt with respect to whether the outcome of the trial was substantially influenced by the introduction of that evidence.”  Id. at 1213 (citations omitted).  The court believed this error was “of constitutional dimension, because the injection of ethnicity into the trial clearly invited the jury to put the [appellants’] racial and cultural background into the balance in determining their guilt.”  Id.  The court viewed this error “as a serious trespass on due process and equal protection” and stated that “[f]ormal equality before the law is the bedrock of our legal system, and we are determined that that principle will not be undermined.”  Id.

In United States v. Rodriguez Cortes, a Colombian identification card was admitted into evidence after defendant’s in limine motion to exclude the card was denied because the trial court found its probative value outweighed its prejudicial effect.  United States v. Rodriguez Cortes, 949 F.2d 532, 540 (1st Cir. 1991).  The First Circuit Court found that the district court abused its discretion in admitting the identification card.  Id. at 541. “Whether or not intended, the effect of the introduction of the identification card into evidence was to allow the jury to determine guilt based on [the defendant’s] supposed nationality.” Id.  Comments by the prosecutor in closing argument regarding defendant’s Colombian nationality, “could be taken as an appeal to the jurors to find the defendant guilty by reason of his national origin, inviting them to believe that if a person is born in Colombia, then he must be involved in drug trafficking.”  Id.  This card was used as the basis for making generalizations about all Colombians; therefore it is more likely that whatever preconceived notions the jury had about Colombians and drug trafficking would infect the deliberations.  Id. at 542. The court held that this is precisely the prejudice that Rule 403 is intended to guard against.  Id. at 541.

Texas courts have long held that race or national origin of a defendant is an inappropriate focal point for argument by the State, particularly in light of the times.  See Marx v. State, 141 Tex. Crim. 628, 150 S.W.2d 1014, 1016-17 (1941) (“Gentlemen of the jury, we have this man of Germany – this man or beast . . .” comments held to be error because they were inflammatory and were calculated at such time to unfairly influence the jury against the appellant); Richardson v. State, 158 Tex. Crim. 536, 257 S.W.2d 308, 309 (1953) (“This negro is a lustful animal . . . he lacks the very fundamental elements of mankind” comments held to be inflammatory and may well have been utilized by the jury in assessing the death penalty; therefore, defendant did not have a fair trial with these words ringing in the jury’s ears).

In Riascos v. State, appellant was convicted of murder, and the appellate court remanded for a new trial. Riascos v. State, 792 S.W.2d 754, 755, 758 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d).  The evidence showed that there was a killing related to a $200 debt of an unknown character. Id. at 758. The appellant argued that he was denied effective assistance of counsel because his counsel: (1) failed to object when the State referred to appellant as a “Colombian illegal alien”; (2) failed to object when the State developed a scenario that this was a drug related murder without competent evidence and when the arresting officer testified that he gets “assigned the majority of Colombian drug related homicides”; and (3) opened the door to extraneous offenses committed by appellant during the testimony of an alibi witness.  Id. at 756-58. The appellate court stated that “[w]e cannot say beyond a reasonable doubt that the irregularities of the trial made no contribution to the conviction of appellant or to his punishment.” Id. at 758. The appellate court held:

The State unduly inflamed the jury to the prejudice of appellant.  No reasonable argument can be brought to suggest the defense allowed the events to take place in the interests of trial strategy. Competent counsel would have objected, obtained jury instruction and moved for a mistrial on each occasion. The cumulative effect of the errors pointed out by appellant is outrageous and we must remand for a new trial as to both guilt or innocence and punishment.

Id.

In Cuero v. State, appellant argued that the trial court committed reversible error when it overruled his objection to the admission of evidence of appellant’s Colombian nationality because the State wrongfully invited the jury to infer his guilt from this evidence, which denied him a right to a fair trial in violation of his Texas constitutional rights.  Cuero v. State, No. 01-93-00989-CR, 1994 Tex. App. LEXIS 2739, *13 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (not designated for publication).  Appellant’s trial counsel did not object to all references made to “Colombians” and therefore the appellate court held nothing was presented for appellate review. Id. at *16. However, the court did note that even if appellant had preserved his complaint, his argument had no merit because: (1) they were passing references made by one State’s witness who was recounting a statement made by one of the participants in the drug transaction at issue; (2) the State did not emphasize or even refer to appellant’s nationality in its closing argument; and (3) appellant did not direct the court’s attention to any other part of the record where the State attempted to improperly utilize his nationality.  Id. at *17.

Taking this case law into consideration, we have reviewed the testimony and evidence in detail.  During the surveillance of Castaneda’s activities, the undercover officer and the confidential informant made contacts with Castaneda.  The surveillance was recorded and all of the parties on the tape spoke in Spanish, including the Hispanic voice heard who was later identified as Castaneda.  A Spanish speaking officer helped monitor the surveillance.  At trial, these tapes were played and a translation in English was provided to the jury.  When Castaneda was pulled over, the conversation with the officer was in Spanish.

When asked about the “close-up writing on the back” of the white pickup truck, one narcotics officer responded: “The Michoacan is a well-known area in Mexico where they manufacture methamphetamine, they are notorious for that.”  When another officer was asked what “Purro Michoacan” means, he replied: “Pure Michoacan.  Michoacan is a state in Mexico, down south in Mexico, and Purro is pure, Michoacan.”  When this same officer was asked what this means to him based on his experience as a narcotics officer, he replied: “Michoacan is a state known in Mexico that provides a lot of heroin and methamphetamine.  It’s actually more known for heroin than anything else.  A lot of heroin that comes into the United States comes from the state of Michoacan.”  Castaneda’s trial counsel objected to this testimony for lack of foundation, which was overruled.  He also objected as to the irrelevancy of the testimony about heroin, which was sustained as to heroin and the jury was instructed to disregard as to heroin. Trial counsel’s request to strike the answer was denied.  The testimony of this officer continued with the question by the State: “Based on, again your some 14, 15 years of experience as a narcotics officer, that’s restricted to that state being known for it’s methamphetamine, is it one of the higher producing methamphetamine Mexican states?”  The officer replied: “Yes, it is.”

Another officer testified regarding what the writing on the back of the pickup truck means to him as a narcotics officer: “In my experience I have had experience in the past where I learned that Michoacan was a state in Mexico that was known among narcotics investigators to be a state that is known to produce large quantities of methamphetamine that are shipped into America.”[3]  Finally, another narcotics officer was asked based on his experience, whether he was familiar with the location of Michoacan in Mexico.  He replied: “A lot of the Mexico drug traffickers who specialize in the manufacture and distribution of methamphetamine hail from that particular state.”

An officer testified regarding miscellaneous papers found in the apartment during the search.  He stated that “[m]ost of them are wire transfers from Western Union from America to Michoacan or Pachuca, Mexico.”  This officer was then asked: “is that the same Mexican state that was on the – on the two vehicles that were involved in the incident.”  He responded: “Yes, it is.”  The State did not mention Michoacan in its closing argument.

The record fails to contain any information regarding trial counsel’s rationale for failing to object to the testimony regarding Michoacan.  Castaneda has not overcome the strong presumption that his counsel’s actions might have been sound trial strategy.  See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.  Therefore, we cannot say that this conduct is so outrageous that no competent attorney would have engaged in it.  See Garcia, 57 S.W.3d at 440.  For an undetermined reason, counsel did not object, and only further inquiry will provide the information necessary to make the proper determination whether he provided the effective assistance envisioned under the Sixth Amendment.  Thompson, 9 S.W.3d at 814.  Therefore, we overrule Castaneda’s issue as to failure to object to testimony regarding his ethnicity.

CONCLUSION

Because we overrule Castaneda’s single issue in its entirety, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed December 29, 2004

Do not publish

[CRPM]

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    [1]       Castaneda was linked to this truck through the registration and testimony that he was stopped in the white Mustang, but his keychain contained keys to this truck, which was found parked at his apartment.  Although, the white Mustang was not registered to Castaneda, he was linked to it because he was stopped while driving it and the keychain contained keys to both the Mustang and the truck.

    [2]       A majority of this court has recently held that there can be no strategic basis for not requesting notice under Texas Code of Criminal Procedure article 37.07 section 3(g).  Loredo v. State, No. 10-01-00078-CR, 2004 Tex. App. LEXIS 11122, *7 (Tex. App.—Waco Dec. 8, 2004, no pet.).

    [3]       Castaneda’s trial counsel objected based on relevancy of other cases when this officer first started to answer with “it’s significant to me because one of the first major cases that I ever worked on was a methamphetamine case, and –.” This objection was sustained and the officer continued to testify.