Cornelio Frias Parra v. State of Texas

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Cornelio Frias Parra

Appellant

Vs.                   No. 11-01-00117-CR B Appeal from Dallas County

State of Texas

Appellee

The jury convicted Cornelio Frias Parra of the offense of possession with the intent to deliver methamphetamine in an amount by aggregate weight, including any adulterants or dilutants, of 400 grams or more.  The trial court assessed appellant=s punishment for 25 years and a $1,500 fine.  We affirm.

Appellant raises three issues on appeal.  First, he claims that the trial court denied him the right to effective assistance of counsel.  Second, he claims that the trial court denied him the constitutional right to counsel of his choice. Third, he asserts that the evidence is legally insufficient to support his conviction because there is no evidence that he possessed 400 grams or more of methamphetamine, including adulterants or dilutants.

We address appellant=s first and second issues together because appellant, in support of the issues, raises the same complaints about the trial court.  In support of his claim that the trial court denied him effective assistance of counsel, appellant contends that (1) the trial court abused its discretion in permitting his retained counsel to withdraw, (2) the trial court denied him the reasonable opportunity to hire new counsel of his choice, and (3) the trial court forced him to accept appointed counsel who was not prepared for trial.  In support of his claim that the trial court denied him the constitutional right to counsel of his choice, appellant contends that (1) the trial court improperly permitted his retained counsel to withdraw and (2) the trial court failed to provide him with a reasonable opportunity to retain new counsel.

A criminal defendant is entitled to counsel of his choice if he is able to pay for the counsel.  Powell v. Alabama, 287 U.S. 45, 53 (1932).  However, an indigent defendant does not have the right to the appointment of counsel of choice.  Stearnes v. Clinton, 780 S.W.2d 216, 221 (Tex.Cr.App.1989).  The trial court, at the pre-indictment stage, determined that appellant was indigent and appointed Sharion Fisher to represent appellant. Appellant later retained  Juan Carlos Sanchez to represent him.  During the next four months, the case was reset numerous times; and then, appellant=s retained counsel filed a motion to withdraw.  Appellant=s counsel based the request to withdraw on appellant=s failure Ato meet contractual obligations@ and on not being able to Apay for a jury trial as agreed upon.@  The trial court permitted appellant=s retained counsel to withdraw and reappointed Sharion Fisher as appellant=s counsel.

We review the trial court=s decision to allow appellant=s retained counsel to withdraw under an abuse of discretion standard.  Green v. State, 840 S.W.2d 394, 408 (Tex.Cr.App.1992), cert. den=d, 507 U.S. 1020 (1993).  The trial court permitted Sanchez to withdraw on February 9, 2001. Appellant claims that he did not have notice of the motion to withdraw before the trial court granted it.  Appellant wrote a letter to the trial court (the letter is stamped as filed by the district clerk=s office on February 26, 2001).  In the letter, appellant indicated that it had come to his attention that Sanchez had petitioned the court to withdraw.  In response to Sanchez=s claim that appellant had failed to meet his contractual obligations, appellant indicated that Sanchez had failed Ato uphold his obligations for the first part of his retainer which he has been paid in full for.@ Appellant did not express an ability to pay his counsel for any more work, such as the jury trial.  Appellant requested Afurther audience with the court to express my side to this situation.@ 

The record does not show that appellant made any more attempts (orally or in writing) to communicate with the trial court about the withdrawal of his retained attorney.  On February 28, 2001, the case went to trial.  Appellant=s appointed counsel, on appellant=s behalf, presented appellant=s handwritten motion for continuance.  In the motion, appellant did not state anything or complain about the withdrawal of his retained attorney.  He neither objected to his court-appointed attorney nor requested time to hire new counsel.  Instead, he asked for more time to prepare.  He believed that his attorney did not have enough time to prepare.   He never indicated that he wanted  Sanchez to continue to represent him.  The record does not demonstrate that the trial court abused its discretion when it permitted Sanchez to withdraw.

Appellant argues that the trial court was required to make another determination of indigency before reappointing Fisher.  Sanchez withdrew on February 9, and the trial court apparently appointed Fisher on the same day.  The record establishes that it was proper for the trial court to reappoint counsel, whether or not the trial court actually made another determination of appellant=s indigency status.  The record does not reflect that appellant=s financial ability  had changed since the trial court=s earlier determination that appellant was indigent. Apparently, appellant or someone on his behalf had paid a retainer to Sanchez, but the record does not show the amount of the retainer or who paid it.  Appellant never stated that he had the ability to pay counsel of his choice. Additionally, only a month later, on March 7, 2001, appellant, again claiming to be indigent, requested that the trial court appoint counsel in connection with his appeal; and the trial court appointed appellant=s current counsel.  The trial court did not err when it reappointed Fisher to represent appellant.

Appellant claims that the trial court erred by failing to allow appellant a reasonable time to employ new counsel after permitting Sanchez to withdraw.  Appellant did not request time to hire new counsel or indicate that he wanted to hire new counsel.  He failed to present any request for time to employ new counsel to the trial court.  The trial court did not err.

Appellant complains that the trial court prejudiced him by making Fisher go to trial only 19 days after she was appointed.  We disagree.  This amount of time exceeds the statutory requirement that court-appointed counsel have a minimum of 10 days to prepare for trial after appointment.  See TEX. CODE CRIM. PRO. ANN. art. 1.051 (Vernon Supp. 2002); Marin v. State, 891 S.W.2d 267 (Tex.Cr.App.1994).              

In reviewing a claim of ineffective assistance of counsel, we must apply an objective standard of reasonableness.   A defendant making a claim of ineffective assistance of counsel must show that (1) counsel was deficient 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 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986).   We analyze appellant=s state and federal claims together because the Texas constitutional and statutory provisions do not provide any greater protection than the federal provisions.  See Butler v. State, 872 S.W.2d 227 (Tex.Cr.App.1994), cert. den'd, 513 U.S. 1157 (1995).

A claim of ineffective assistance of counsel must be determined on the particular facts and circumstances of each individual case.  See Jimenez v. State, 804 S.W.2d 334, 338 (Tex.App. - San Antonio 1991, pet=n ref'd). Isolated instances in the record reflecting errors of omission or commission do not render counsel's performance deficient.  McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den'd, 508 U.S. 963 (1993).  Whether the Strickland test has been met is to be judged by the totality of the representation.  McFarland v. State, supra.   There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. See Strickland v. Washington, supra at 689; Stafford v. State, 813 S.W .2d 503, 506 (Tex.Cr.App.1991). Stated another way, "competence is presumed and appellant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy." Stafford v. State, supra at 506.

Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Cr.App.1985).  Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded.  See Jimenez v. State, supra at 338.  However, while a defendant must overcome the presumption that the complained of errors are supported by sound trial strategy, counsel's conduct will not be supported by the presumption of competence where counsel's actions cannot be attributed to any reasonable trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Cr.App.1994).          

Appellant=s only complaints about Fisher are that she failed to meet with appellant until five days before trial and that she failed to secure appellant=s character witnesses for trial.  Appellant does not attack any of  Fisher=s decisions or actions  at trial. The witnesses that appellant wanted to testify at trial were his uncle, his wife, and his boss in California.

Appellant has not satisfied either of the Strickland elements.  First, appellant has not shown that his counsel was ineffective. The record does not establish that appellant=s appointed counsel was ineffective.  Furthermore, the record establishes that his appointed counsel, as pointed out by the State, filed and argued numerous pretrial motions and actively participated throughout the entire trial.  The record does not establish a lack of trial strategy on the part of appellant=s counsel.  Second, the record does not show that there is a reasonable probability that the outcome of the proceedings would have been different but for his appointed counsel=s alleged deficiency.  Appellant contends that it is reasonable to believe that a different result at trial would have occurred if his Acorroborating@ witnesses had been able to testify.  We disagree.  Appellant=s character or Acorroborating@ witnesses have no personal knowledge about the incident in question.  We overrule appellant=s first and second issues.

In his third issue, appellant asserts that the evidence is legally insufficient to support the conviction, claiming that there is no evidence that the amount of methamphetamine that appellant possessed was over 400 grams.  In reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Cr.App.1991).  The inquiry is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.  Turner v. State, supra at 427.  The jury, as the fact finder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony and could choose to believe or disbelieve all or any part of any witness's testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App.1992).  

The State had the burden to prove beyond a reasonable doubt that appellant possessed, with the intent to deliver, methamphetamine in an amount by aggregate weight, including any adulterants or dilutants, of 400 grams or more.  Appellant concedes that there was specific evidence that he possessed 231 grams of methamphetamine, but argues that there was no evidence that 169 additional grams of the substance is an Aadulterant@ or Adilutant@ as these terms have been defined by the Texas courts.  An Aadulterant or dilutant@ is Aany material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.@  TEX. HEALTH & SAFETY CODE ANN. ' 481.002(49) (Vernon Pamph. Supp. 2002).  Under this definition, the State is required to prove that material other than the controlled substance increased the bulk or quantity of the controlled substance. See Warren v. State, 971 S.W.2d 656, 661 (Tex.App. - Dallas 1998, no pet=n). In order to establish that the substance in question weighed at least as much as the minimum weight charged in the indictment, the State must only prove (1) that part of the substance is a controlled substance and (2) that the aggregate weight of the substance (controlled substance plus other material) equals or exceeds the minimum weight alleged in the indictment.  See Williams v. State, 936 S.W.2d 399, 405 (Tex.App. - Fort Worth 1996, pet=n ref=d). Thus, it is not necessary for the State to establish a specific weight of the controlled substance or a specific weight of the other material (weight of the adulterants and dilutants).  See Williams v. State, supra at 405.     

Matthew Fihlman, a special agent with the Drug Enforcement Administration (DEA), testified that he searched the vehicle at the scene of appellant=s arrest. He found ten packages of a substance in the trunk.  He took photographs of the packages.  The photographs were introduced at trial as State=s Exhibits Nos. 5 thru 9.

Cheryl White, a forensic chemist with the DEA, testified that she tested the substance.  She prepared a report concerning her findings.  The report was introduced at trial as State=s Exhibit No. 13.  The report indicated that the substance was in ten packages.  White stated that there were ten bundles of the substance.  She did a preliminary test on each bundle.  All ten of the bundles tested positive for methamphetamine.  She also referred to the bundles of the substance as bricks.  She then took a portion from each of the bundles to compile a composite.  She grounded up the composite and did her final analysis. 

White testified concerning her findings.  The gross weight of the substance was 4,800 grams. The gross weight included the methamphetamine, adulterants, and packaging.  The total or net weight of the substance (without packaging) was 4,390 grams.  The substance contained 5.3 percent methamphetamine (231 grams).  White testified that the remainder (roughly 95 percent) of the sample was made up of adulterants, dilutants, and moisture.  She testified that adulterants and dilutants accounted for this other (roughly 95 percent) part of the substance.   White=s report indicated that the sample contained Ad-Methamphetamine@ and ADimethyl Sulfone.@

White=s testimony is legally sufficient to support the conviction.  She testified that part of the seized substance was methamphetamine (231 grams) and that the total weight of the seized substance was 4,390 grams.  This evidence alone is legally sufficient to support a finding that appellant possessed methamphetamine of an aggregate weight, including adulterants and dilutants, of 400 grams or more.  See Warren v. State, supra at 661; Williams v. State, supra at 405.

Appellant relies upon the Court of Criminal Appeals= decisions in McGlothlin v. State, 749 S.W.2d 856 (Tex.Cr.App.1988), and Cawthon v. State, 849 S.W.2d 346 (Tex.Cr.App.1992).   The court decided these cases before the legislature defined Aadulterants@ and Adilutants@  in the relevant section of the Texas Controlled Substances Act.  See Warren v. State, supra at 660.     

In Cawthon, the court interpreted the McGlothlin case and determined that adulterants and dilutants are Acompounds, substances, or solutions added to the named illegal substance...with the intent to increase the quantity of the final product without affecting its activity.@  Cawthon v. State,  supra at 347 n.4.  Using this definition, the Court of Criminal Appeals held that, in order to include adulterants or dilutants as part of the weight utilized to increase punishment, the State is required (1) to prove the identity of the illegal substance, (2) to prove that the added remainder (adulterants and/or dilutants) has not affected the chemical activity of the named illegal substance, (3) to prove that the remainder (adulterants and/or dilutants) was added to the named illegal substance with the intent to increase the bulk or quantity of the final product, and (4) to prove the weight of the illegal substance, including any adulterants and/or dilutants.  Cawthon v. State, supra at 348-49.  The legislature=s definition of Aadulterants@ and Adilutants@ as  Aany material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance@ Aeliminates the requirements that the State prove (1) intent to increase the bulk or quantity, and (2) the adulterants or dilutants have not affected the chemical activity of the named substance.@ Warren v. State, supra at 660. 

Since the courts in McGlothlin and Cawthon considered a different definition of Aadulterants and dilutants@ and, therefore, applied a different standard, much of the analysis and reasoning in those cases do not apply to this case.  However, we find that the evidence would be legally sufficient to support appellant=s conviction even under a  McGlothlin and Cawthon analysis. 

In McGlothlin, the police seized an amphetamine solution. The solution was in a three-layer flask.  The gross weight of the seized material was 3,118 grams; the net weight of the solution in the flask was 2,845 grams.  The jury convicted the defendant of the offense of possession of amphetamine of an aggregate weight, including any adulterants or dilutants, of 400 grams or more.  Both parties presented expert testimony concerning the weight and content of the amphetamine.  The experts agreed that the solution in the flask was split into two different layers.  There was a larger Aaqueous layer@ on the bottom and a smaller Aorganic layer@ floating on top of the aqueous layer. The State=s expert testified that the two layers were Asignificantly different@ and that the layers did not mix.  He admitted that most of the Aaqueous layer@ was water.  The court held that there was no evidence that the water was an adulterant or dilutant:

It is clear from the record that without the addition of the water, the appellant was in possession of less than 400 grams. The record is devoid of any evidence pertaining to the reason or purpose for the presence of the water in the solution. Absent any such evidence it cannot be said that the water was an adulterant or dilutant.  That is, the record contains no evidence that the water was intended to increase the bulk or quantity of the final product.

McGlothlin v. State, supra at 861.

In Cawthon, the State=s expert testified that the substance in question contained 20 percent amphetamine. The expert testified that he noticed the presence of nicotinamide, but the State did not offer any evidence as to the nature or purpose of the nicotinamide or as to whether it was added with the intent to increase the bulk of the substance without affecting its chemical activity.   Cawthon v. State, supra at 349 n.9.  The court explained that the State failed to prove Athat the unidentified portion was added to the amphetamine to increase the bulk or quantity of the amphetamine without affecting its chemical activity.@  Cawthon v. State, supra at 349.  

McGlothlin involved an aqueous layer (water).  Cawthon involved a lack of testimony concerning an unidentified portion of the substance.  In the present case, the State presented evidence concerning the methamphetamine and the other material in the substance.  The substance was in ten packages. The substance was not a solution.  It did not have more than one layer.  It was mixed together.  There was no water present.  There was only moisture.  The substance in each of the ten packages tested positive for methamphetamine.  It was obvious that something was added to the methamphetamine to substantially increase its bulk.  White referred to the substance as being in ten bricks. The photographs showed the nature of the substance.  The testing established that methamphetamine made up 5.3 percent of the substance. 

White testified that adulterants and dilutants roughly made up the other 95 percent of the tested substance.  White=s report showed the presence of dimethyl sulfone.  Kim Sanders, a narcotics officer with the Dallas Police Department, testified at trial.  Based upon his 18 years experience, Officer Sanders has substantial knowledge about methamphetamine and other controlled substances.  He testified that dimethyl sulfate is used to increase the bulk of methamphetamine.  Based upon the evidence, it is reasonable to conclude that the dimethyl sulfone referred to in White=s report was used to increase the bulk of the substance.

In Short v. State, 874 S.W.2d 666, 668 (Tex Cr.App.1994), another case that was decided before the legislature enacted its definition of Aadulterant or dilutant,@ the defendant was convicted of manufacturing methamphetamine, including any adulterants or dilutants, of 400 grams or more.  The State=s expert testified that Athe aggregate weight of the methamphetamine, including any of its adulterants and/or dilutants, was 1,093.7 grams, which clearly exceeds 400 grams.@ Short v. State, supra at 668. The Court of Criminal Appeals held that this unchallenged expert testimony was legally sufficient to support the conviction.    Short v. State, supra at 668.  The testimony in Short is similar to White=s testimony in this case.                                

Appellant argues that Short does not apply to this case because White testified that the substance in question included moisture in addition to adulterants and dilutants.  White neither stated whether she considered the moisture to be an adulterant or dilutant nor identified how much moisture was present; however, that testimony was not necessary in this case.  Appellant was charged with possession of methamphetamine, including adulterants and dilutants, of 400 grams or more.  White testified that the aggregate weight of the substance was 4,390 grams.  The State had the burden to show that 400 or more grams of the substance was methamphetamine, including adulterants and dilutants.  The State met that burden.  It is clear that moisture did not make up more than 3,990 grams of the substance. We overrule appellant=s Issue No. 3.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

August 8, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.