Jenkins, Domineque Roshon v. State ( 2004 )

Affirmed and Memorandum Opinion filed March 30, 2004

Affirmed and Memorandum Opinion filed March 30, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00135-CR

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DOMINEQUE ROSHON JENKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 02CR2340

M E M O R A N D U M   O P I N I O N

Appellant Dominique Roshon Jenkins appeals his conviction of possession of four grams or more but less than 200 grams of cocaine.  See Tex. Health & Safety Code Ann. '' 481.102(3)(D) (Vernon Supp. 2004), 481.115(d) (Vernon 2003). After the jury found appellant guilty, the trial court assessed punishment at twenty years= confinement.  In three points of error, appellant contends the evidence was legally and factually insufficient to support his conviction and his trial counsel rendered ineffective assistance in not asserting a motion to suppress. We affirm.

FACTUAL BACKGROUND

Jeff Anderson and Michael Amato, two off-duty Houston police department officers, pulled Anderson=s truck into a carwash in Dickenson to wash some jet skis they had been using.  Amato was cleaning the skis in a wash bay, and Anderson was standing near the front of his truck when an unidentified woman approached Anderson and Anderson noticed she was holding a crack cocaine rock.  The woman solicited Anderson, offering to sell him sex and narcotics.

According to Anderson, while he was speaking to the woman, appellant walked toward Anderson and held out a clear plastic baggy.  Appellant and Anderson made eye contact from about fifteen to twenty feet, and, according to Anderson, appellant Akind of nodded his head like this . . . like, >Do you want some?=@  Anderson said, ANo,@ and appellant walked away.  Based on his training and experience, which included nearly a thousand drug arrests, Anderson Aknew immediately,@ what appellant  showed him was crack cocaine.

Not more than a minute or two after appellant showed Anderson the baggy, Kenneth Williams, a Galveston County Deputy Sheriff, arrived in his patrol car at the carwash, which, according to Williams, was located in an area of heavy narcotics activity.  Williams pulled into the carwash, observed a subject he recognized as a local narcotics dealer, and backed into the vacuum cleaner stalls and started watching.  At that time, Anderson approached Williams, described appellant to Williams, and informed Williams appellant had a lot of crack cocaine and had tried to sell Anderson narcotics.

While Williams was waiting for a second unit to arrive, a vehicle pulled up, and appellant started to get in.  Williams then contacted appellant and let him know what he was investigating. According to defense witnesses who were present at the carwash, Williams informed appellant he was a suspicious person, but he was not in trouble or under arrest.  Williams then patted appellant down for weapons.^[1]  Williams found no weapons or narcotics, but did find a large amount of money. Williams then handcuffed and secured appellant in the back of Williams= car, behind the driver=s seat.  As Williams was counting the moneyCapproximately $700.00Che felt the car shake, as if appellant were moving around. From Williams=s past experience, he believed, based on the movement, appellant was disposing of the narcotics.

Williams removed appellant from the patrol car.  Williams checked the car and underneath the driver=s seat found a crumpled plastic bag, which appeared to contain crack cocaine.  When Williams pulled on the backrest where appellant had been sitting, a syringe rolled down from the seat opposite appellant=s.^[2]  Williams showed the bag to Anderson and asked, ADoes this look like what he had?@ Anderson responded, AYes, that=s it without a doubt.@

At 4:30 p.m., appellant was placed under arrest at the carwash.  Williams testified he began his shift ten and a half hours earlier, at 6:00 a.m.  He testified he checks under the seats of his car when he goes on duty, whenever he places someone in the car, and whenever he removes someone.  Williams did not remember whether he had placed anyone in the car before arresting appellant.  Finally, Williams testified that, before appellant was in the back seat, there were no narcotics in the car, and after Williams removed appellant, there were.

DISCUSSION

Points of Error One and Two: Legal and Factual Sufficiency of the Evidence

In his first and second points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  We apply different standards when reviewing the evidence for legal and factual sufficiency.

When reviewing the legal sufficiency of the evidence, this court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). This standard of review applies to cases involving both direct and circumstantial evidence.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

When a defendant challenges the factual sufficiency of the elements of an offense, the correct standard we must follow requires us to determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the jury=s verdict, or (2) the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Zuliani v. State, 97 S.W.3d 589, 593B94 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We must accord due deference to the fact finder=s determinations, particularly those determinations concerning the weight and credibility of the evidence.  Johnson, 23 S.W.3d at 9.  The verdict should be set aside only in order to prevent a clearly wrong and unjust result. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

When a defendant is charged with unlawful possession of cocaine, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the defendant knew the object he possessed was contraband.  Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (citing Linton v. State, 15 S.W.3d 615, 619 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d)). Although the element of possession may be proved by circumstantial evidence, such evidence must affirmatively link the defendant to the offense, so one may reasonably infer the defendant knew of the contraband=s existence and he exercised control over it.  Id.  (citing McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985)).

Appellant contends the State did not affirmatively link him to the cocaine. We disagree.

Circumstantial evidence relevant to establish an Aaffirmative link@ between a defendant and the contraband include: (1) the defendant=s presence when the contraband was discovered;  (2) whether the contraband was in plain view;  (3) the defendant=s proximity to, and accessibility of, the narcotic;  (4) whether the defendant was under the influence of narcotics when arrested;  (5) whether the defendant possessed other contraband 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 the contraband;  (10) whether other contraband or drug paraphernalia was present;  (11) whether the place where the drugs were found was enclosed;  and (12) whether the defendant owned or had the right to possess the place where the drugs were found.  Id. (citing Chavez v. State, 769 S.W.2d 284, 288‑89 (Tex. App.CHouston [1st Dist.] 1989, pet. ref=d)). Presence of a large amount of cash can supply an inference that an individual is trafficking in narcotics and, therefore, in possession of contraband.  Dade v. State, 956 S.W.2d 75, 78B79 (Tex. App.CTyler 1997, pet. ref=d).  Despite this list of possible links, there is no set formula of facts that necessitate a finding of an affirmative link sufficient to support an inference of knowing possession.  Hyett, 58 S.W.3d at 830 (citing Porter v. State, 873 S.W.2d 729, 732 (Tex. App.CDallas 1994, pet. ref=d)).

Moreover, the number of affirmative links present is not as important as the logical force they have in establishing the elements of the offense.  See Corpus v. State, 30 S.W.3d 35, 37B38 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (stating same in context of case involving possession of a firearm by a felon). Instead, we view the totality of the facts and circumstances.  Hyett, 58 S.W.3d at 830; see Sosa v. State, 845 S.W.2d 479, 483B84 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (concluding totality of circumstances was of such a character jury reasonably could conclude defendant was aware of contraband and exercised control over it).

The following evidence linked appellant to the cocaine:

$ Officer Anderson=s positive identification of the bag containing the cocaine as the bag appellant had held out and offered to sell to Anderson;

$ Appellant=s presence in Williams=s patrol car where the cocaine was found;

$ Williams=s finding the cocaine under the driver=s seat, in front of the backseat where appellant had been sitting;

$ Williams=s feeling the car shaking, which, given his past experience, led him to believe appellant was disposing of narcotics;

$ Williams=s testimony he had checked his patrol car, and before appellant was placed in the backseat, there were no narcotics, but after he removed appellant, the narcotics were present;

$ Seven hundred dollars found on appellant=s person during the pat down.

The preceding evidence compares favorably with that in Williams v. State, 784 S.W.2d 428 (Tex. Crim. App. 1990) (per curiam).  In Williams, the court concluded the evidence was legally sufficient to prove the defendant was the person who deposited four rocks of cocaine behind the back seat of the patrol car when there was evidence (1) the officers began their shift by searching for any items that did not belong there, (2) about 2:30 p.m., the officers pulled out the back seat, observed the area under and around it and found nothing, (3) the defendant gave a false name when stopped for a traffic violation around 5:30 p.m., (4) after arresting the defendant for driving without a license or proof of insurance, the officers patted the defendant down, handcuffed him, and placed him in the backseat of the patrol car, and (5) on the drive to the station, the officer sitting in the backseat next to the defendant observed the defendant fidgeting and reaching down and rubbing in the area of his pocket.  Id. at 429.

Although Williams involved a shorter interval between the officers= pre-shift search and discovery of the contraband than does the present case, in the present case, unlike Williams, the State=s evidence included Anderson=s identification of the bag of cocaine as the one he saw appellant holding.  Just as the evidence was legally sufficient in Williams, we conclude the evidence was legally sufficient in the present case.^[3]

We turn now to the factual sufficiency of the evidence.  We consider the following weaknesses in the State=s evidence and contrary proof presented by appellant=s own witnesses:

$ An alleged inconsistency between State=s Exhibits 1 and 2 (the bag and the rock cocaine) and Anderson=s description of the plastic bag appellant held as being Alarge@ and containing thirty to thirty-five rocks of crack cocaine;

$ An elapsed period of ten and one-half hours between the pre-shift search of the patrol car and discovery of the cocaine;

$ Williams=s inability to remember whether he had placed anyone else in the car earlier in the shift and the likelihood he had done so;

$ Williams=s inability to explain the presence of the syringe in the back seat of the patrol car;

$ Appellants= being handcuffed, wearing pressed clothing and a belt as increasing the difficulty of his having secreted the cocaine on his body during the patdown and then having disposed of it in the patrol car;

$ Appellant=s mother=s testimony she had given appellant $650.00 of the $700.00 found during the patdown.

At most, the preceding evidence relates to the credibility of the State=s witnesses and the weight to give the State=s evidence.    See Johnson, 23 S.W.3d at 7.  The jury is the sole judge of the credibility of these witnesses and the weight to be given to the testimony.  Id. What weight to give contradictory testimonial evidence is within the sole province of the trier of fact, because weight turns on the evaluation of credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997).  We must show deference to the jury=s findings.  Id. at 409.  A decision is not manifestly unjust merely because the jury resolved the conflicting views of evidence in favor of the State.  Id. at 410.

Having reviewed the evidence in a neutral light, we conclude the proof of guilt is not so obviously weak as to undermine confidence in the jury=s verdict, and the proof of guilt is not greatly outweighed by contrary proof.  See Zuliani, 97 S.W.3d at 593B94; Johnson, 23 S.W.3d at 11.  The evidence was factually sufficient to support appellant=s conviction.

Having found the evidence legally and factually sufficient, we overrule appellants first and second points of error.

Point of Error Three: Ineffective Assistance Counsel

In his third point of error, appellant contends trial counsel rendered ineffective assistance by failing to present a motion to suppress the cocaine.  The motion at issue appears to be a pro se motion in which appellant alleged:

Defendant was detained and searched, which result[ed] in this arrest without a warrant, without probable cause, and without his consent by members of law enforcement . . . contrary to . . . Article 14 of the Texas Code [of] Criminal Procedure; hence, the fruits of that detention arrest[,] and search should be suppressed pursuant to [Article] 39.23 of the Code of Criminal Procedure.

Although appellant filed a post-conviction motion containing a one-sentence allegation of ineffective assistance of trial counsel, he did not provide any supporting affidavits, and there was no evidentiary hearing on the motion.

To prevail on a claim of ineffective assistance of counsel, an appellant must show (1) counsel=s performance was deficient, i.e., it fell below an objective standard of reasonableness, and (2) appellant was prejudiced, i.e., there is a reasonable probability that but for counsel=s errors, the result of the proceeding would have been different.  Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (regarding application of Strickland test to non-capital sentencing proceedings). Appellant bears the burden of proving by a preponderance of the evidence counsel was ineffective.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.1999).  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Varelas, 45 S.W.3d at 629.  An appellant=s failure to satisfy one prong of the Strickland test negates a court=s need to consider the other prong.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

When we review ineffectiveness claims, our scrutiny of counsel=s performance must be highly deferential.  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.  A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances.  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.  A fair assessment of attorney performance requires making every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel=s perspective at the time.  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

The presumption that an attorney=s actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney=s reasons for his conduct.  Busby v. State, 990 S.W.2d 263, 268‑69 (Tex. Crim. App. 1999).  Instead, without evidence of counsel=s reasons for the challenged conduct, an appellate court A>commonly will assume a strategic motivation if any can possibly be imagined,= and 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, 57 S.W.3d at 440 (quoting 3 W. LaFave, et al., Criminal Procedure ' 11.10(c) (2d ed. 1999), and citing Thompson, 9 S.W.3d at 814); see also Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (stating A[a] vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent@); Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (holding, despite arguably objectionable nature of evidence to which counsel did not object, Awithout some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic design@).

The record is silent regarding trial counsel=s reasons for not presenting appellant=s pro se motion to suppress.  In such circumstances, we must presume counsel made all significant decisions in the exercise of professional judgment.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Broussard v State, 68 S.W.3d 197, 199 (Tex. AppCHouston [1st Dist.] 2002, pet. ref=d) (en banc); see Robinson v. State, 22 S.W.3d 631, 636B37 (Tex. App.CWaco 2000, pet. ref=d) (holding, on face of silent record, defendant failed to establish deficience performance based on failure to present motion to suppress evidence seized during allegedly illegal traffic stop when, given facts surrounding stop, it was possible counsel determined motion would have been frivolous).

Because the record is silent, appellant has failed to rebut the presumption that trial counsel=s actions were based upon a reasonable decision.  See Perez v. State, 56 S.W.3d 727, 731B32 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Without a sufficient record, an appellant cannot overcome this presumption, and we cannot conclude counsel was ineffective.  Tong, 25 S.W.3d at 714; Broussard, 68 S.W.3d at 199.

Moreover, appellant cannot satisfy Strickland without proving his suppression motion was meritorious.  Jackson v. State, 973 S.W.2d 954, 957 (Tex.  Crim. App. 1998) (stating defendant obliged to prove suppression motion would have been granted in order to satisfy Strickland); see also Kimmelman v. Morrison, 477 U.S. 365, 390B91, 106 S. Ct. 2574, 2591 (1986) (indicating, for defendant to establish prejudice, he would have to establish suppression claim was meritorious and, absent the evidence at issue, there would have been reasonable probability trial judge would have had reasonable doubt regarding guilt).  He has not done so.

At a minimum, Williams had sufficient reason for detaining appellant to investigate a possible crime, and appellant concedes as much.  See Davis v. State, 829 S.W.2d 218, 219 n.2 (Tex. Crim. App. 1992) (stating, for temporary investigative detention to be valid (1) unusual activity must be occurring or have occurred;  (2) the accused must be connected with the suspicious activity; and (3) the suspicious activity must be connected with a crime).  Under such circumstances, an officer may conduct a limited search for weapons of a suspect=s outer clothing, even in the absence of probable cause, when an officer reasonably believes that the suspect is armed and dangerous to the officer or others in the area.  Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002) (citing Terry v. Ohio, 392 U.S. 1, 27, 29, 88 S. Ct. 1868, 1883B84 (1968); Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000)).  Suspected narcotics dealing and attempted flight, both of which were present here, are two factors that may lead an officer reasonably to believe a suspect may be armed and dangerous.  See Sargent v. State, 56 S.W.3d 720, 725B26 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Although Wilson testified on cross-examination, in response to leading questions, that he was looking for narcotics and weapons, there is nothing in the record to suggest the frisk Wilson actually conducted exceeded the limits of the pat-down permitted by Terry. Finally, depending on the circumstances, handcuffing appellant and placing him in the patrol car did not necessarily cause the detention to exceed its permissible scope.  See Balentine, 71 S.W.3d at 771 (holding investigative detention did not evolve into an arrest simply because appellant was escorted to the patrol car and handcuffed).  Appellant has not established his suppression motion would have been successful.

Appellant has not met his burden of establishing deficient performance or prejudice.  Accordingly, we overrule his third point of error.

CONCLUSION

We affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed March 30, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  On cross-examination, Williams was asked whether the search was Adesigned to find any narcotics or weapons,@ and Williams answered, AYes.@  Williams also answered AYes@ to the question of whether he patted appellant down with the thought in mind appellant might have a large amount of narcotics.

^[2]  According to a defense witness, Williams told appellant, AI know this is not yours, but I will charge you with the cocaine.@

^[3]  Williams was decided under the pre-Geesa test, which required that circumstantial evidence exclude every reasonable hypothesis inconsistent with guilt.  See Williams v. State, 784 S.W.2d 428, 429B30 (Tex. Crim. App. 1990) (per curiam); see also Geesa v. State, 820 S.W.2d 154, 159, 165 (Tex. Crim. App. 1991) (abandoning the Aexclusion of outstanding reasonable hypotheses@ test for all case tried after November 6, 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 572 (Tex. Crim. App. 2000).