Sanford Alden Sutfin v. State

  NUMBER 13-02-431-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

SANFORD ALDEN SUTFIN,                                                       Appellant, 

v.

THE STATE OF TEXAS,                                                     Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.  

MEMORANDUM OPINION  

Before Justices Yañez, Rodriguez, and Garza  

Opinion by Justice Garza

By three issues, appellant, Sanford Alden Sutfin, challenges his conviction for possession of methamphetamine. See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.115 (Vernon 2003). We affirm.

1. Ineffective Assistance of Counsel

In his first issue, appellant contends that his conviction must be reversed because he was given ineffective assistance of counsel at trial. We follow a two-pronged procedure to determine whether representation was so inadequate that it violated the sixth amendment right to counsel. Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.–Corpus Christi 2000, no pet.) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986)). First, trial counsel’s performance must fall below an objective standard of reasonableness. Id. (citing Strickland, 466 U.S. at 687-88). Second, appellant must prove, by a reasonable probability, that counsel’s deficient performance prejudiced the defense—that but for counsel’s errors, the result of the proceeding would have been different. See id. (citing Strickland, 466 U.S. at 686, 694). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 433-34 (citing Strickland, 466 U.S. at 693). Appellant must overcome a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id. at 434 (citing Thompson v. State, 9 S.W.3d 808, 812-14 (Tex Crim. App. 1999); Tijerina v. State, 921 S.W.2d 287, 289 (Tex. App.–Corpus Christi 1996, no pet.)).

Appellant argues that he received ineffective assistance of counsel at trial because his attorney failed to file either a motion in limine or a motion to suppress testimony that appellant was on parole at the time of his arrest and that he had allegedly violated the terms of his parole prior to his arrest. The information in question was offered initially by the State through the testimony of the officer who arrested appellant. On direct examination, the arresting officer testified that appellant was a passenger in a vehicle that had been stopped for speeding. After arresting the driver for driving with a suspended license, the arresting officer questioned appellant to determine whether he could drive the vehicle home. Appellant produced a valid identification, which the officer used to run a background check. After learning that there were no outstanding warrants for appellant’s arrest, the officer asked appellant to step out of the vehicle. Appellant complied, telling the officer that he “didn’t want any trouble . . . [because] he just got out of jail.” The officer asked why he had been in jail, and appellant explained that he was alleged to have broken the terms of his parole by testing positive for illegal drug use. The officer asked appellant to produce a second form of identification. As appellant was searching his wallet for additional identification, a small red plastic bag fell out of his wallet and landed on the shoulder of the road. The officer retrieved the bag, which he believed contained illegal drugs, and arrested appellant.

Appellant’s trial counsel did not object to the arresting officer’s testimony, but instead, put appellant on the witness stand and asked him to confirm the officer’s version of events. Appellant’s testimony corroborated much of the officer’s testimony. Specifically, appellant admitted telling the officer that he was on parole and that he had been recently released from jail for an alleged parole violation, but he maintained that the red plastic bag did not fall from his wallet and that it was not his.

During his closing argument, appellant’s trial counsel used appellant’s parolee status and alleged parole violation to argue for an acquittal. Counsel told the jury that, as a parolee, the consequences of being in possession would be more dire for appellant than for a non-parolee and, therefore, appellant was less likely to have been in possession of the methamphetamine. Counsel also emphasized that appellant had been exonerated by the parole board for his alleged parole violation involving the use of illegal drugs. Counsel argued that the parole board’s decision to continue appellant’s parole indicated appellant had not used illegal drugs during the time in question and that, therefore, a reasonable doubt existed as to whether he had been in possession of the red plastic bag recovered by the arresting officer.

Although counsel’s strategy might be second-guessed with the benefit of hindsight, the record does not establish that his performance fell below an objective standard of reasonableness. See id. at 433. To the contrary, the record demonstrates that counsel employed a strategy intended to create a reasonable doubt as to appellant’s guilt. Appellant has not shown counsel’s performance was deficient. Appellant’s ineffectiveness claim is therefore overruled. See id. at 434 (“Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”) (quoting Strickland, 466 U.S. at 700).        

2. Reasonable Suspicion to Detain / Probable Cause to Arrest

In his second issue, appellant claims that his detention and arrest were illegal. However, no objections were made at trial. Furthermore, neither of appellant’s two court-appointed appellate attorneys has raised the failure of trial counsel to object in making their arguments for counsel’s ineffectiveness. Although appellant might have raised this issue indirectly through his ineffectiveness claim, he cannot raise it directly for the first time on appeal. See Bell v. State, 938 S.W.2d 35, 47-48 (Tex. Crim. App. 1996) (holding that appellant could not challenge illegal search and seizure on appeal where only objection at trial was to the illegality of arrest); Chairs v. State, 878 S.W.2d 250, 252 (Tex. App.–Corpus Christi 1994, no pet.) (“Ordinarily, error that was never raised in the trial court, may not be urged for the first time on appeal.”). The issue was not preserved because no objections were made at trial. See Tex. R. App. P. 33.1; Nelson v. State, 607 S.W.2d 554, 555 (Tex. Crim. App. 1980). Appellant’s second issue is overruled.  

3. Sufficiency of the Evidence

In his third issue, appellant challenges the sufficiency of the evidence supporting his conviction. Appellant’s brief does not specify whether his third issue relates to the legal or factual sufficiency of the evidence. It also fails to discuss the standard of review for either challenge. Because the relief requested by appellant, an acquittal, is consistent only with a legal sufficiency challenge, we construe his third issue as such and will not review the record for factual sufficiency. See Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim. App. 2000) (conducting only a legal sufficiency review where defendant requests an acquittal and does not adequately brief factual sufficiency).

Evidentiary sufficiency is measured against the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State’s burden of proof. Malik, 953 S.W.2d at 240. The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In evaluating a legal sufficiency challenge, the evidence is examined in the light most favorable to the verdict. Id.

Possession is defined in the penal code as “actual care, custody, control or management.” Tex. Penal Code Ann. § 1.07(a)(39) (Vernon Supp. 2004). Possession of contraband requires the State to prove (1) that the defendant exercised actual care, custody, control, or management over the contraband and (2) that the defendant had knowledge that the substance in his possession was contraband. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). In this case, the arresting officer testified that he saw the red plastic bag containing methamphetamine fall out of appellant’s wallet. Thus, in the light most favorable to the verdict, the first element of possession is established: appellant exercised actual care, custody, control, and management over the contraband.

Appellant, however, argues that there is no evidence in the record to establish the second element of possession, appellant’s knowledge that the substance was contraband, because the amount of methamphetamine recovered from the plastic bag was only two-one hundredths of a gram, which, according to appellant, is not a useable or detectable amount. This squarely contradicts the court of criminal appeals, which has explained that possession does not require the amount of contraband to be useable or visible to the naked eye. See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Nevertheless, knowledge cannot be inferred from control alone, or the first element of possession would subsume the second. There must be some evidence to establish that the defendant knew the substance was contraband. See King, 895 S.W.2d at 703. Such evidence is present in this case. The arresting officer testified that the contraband was visible and identifiable as a drug. He described it as a white powdery substance packaged in a red plastic bag. The officer further testified that the packaging was consistent with his experience and training in the packaging of narcotics. Thus, the evidence shows that appellant was in control of a substance that was readily identifiable as an illegal drug. This suffices to establish possession. See id. Appellant’s third issue is overruled.

4. Conclusion

Having overruled each of appellant’s issues, this Court affirms the judgment of the trial court.  

________________________  

                                                                           DORI CONTRERAS GARZA,

                                                                           Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Opinion delivered and filed

this the 3rd day of June, 2004.