John Wesley Ashley v. State ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JOHN WESLEY ASHLEY, No. 08-11-00231-CR
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Appellant, Appeal from
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v. 355th District Court
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THE STATE OF TEXAS, of Hood County, Texas
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Appellee. ' TC # CR11714)
OPINION
John Wesley Ashley appeals from a conviction of delivery of methamphetamine under
one gram, enhanced by two prior felony convictions for possession of methamphetamine under
one gram. A jury assessed the Appellant’s punishment at a term of ten years’ confinement and a
$10,000 fine. We affirm.
FACTUAL SUMMARY
Acting on information from a confidential informant, undercover police officer Ray
Miller gave Appellant one hundred dollars in exchange for a bag containing a white, crystalline
substance purporting to be one gram of methamphetamine. Investigator Justin Caraway
provided back up for the controlled buy in a nearby, parked car but did not actually witness the
transaction between Miller and Appellant. Miller did not videotape the transaction but Caraway
testified that he was able to monitor the transaction over an open cell phone line. After the
controlled buy, Miller and Caraway conducted a field test that identified the substance as
methamphetamine. William Chandley, a Texas Department of Public Safety chemist, tested the
substance Appellant handed to Miller and determined that it was 0.95 grams of
methamphetamine.
LEGAL SUFFICIENCY
In Issue One, Appellant argues the State did not present sufficient evidence to support his
conviction for delivery of methamphetamine.
Standard of Review
To determine the legal sufficiency of the evidence used to support a conviction for
delivery of methamphetamine, we view the evidence in the light most favorable to the verdict
and determine whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.
2010), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979). Under this standard, it is “the responsibility of the trier of fact fairly to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. 2789. The “verdict must stand and unless it is
found to be irrational or unsupported by more than a ‘mere modicum’ of the evidence.” Moreno
v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We resolve all inconsistencies in the
testimony in favor of the verdict. Id.
Applicable Law/Elements of the Offense
A person commits the offense of delivery of methamphetamine if the person knowingly
delivers methamphetamine that, by aggregate weight, is less than one gram. TEX.HEALTH &
SAFETY CODE ANN. § 481.112(a)-(b)(West 2010). “‘Deliver’ means to transfer, actually or
constructively, to another a controlled substance . . . .” Id. § 481.002(8). In a jury trial, the jury
“is the exclusive judge of the facts proved, and of the weight to be given to the testimony.”
TEX.CODE CRIM.PROC.ANN. § 38.04 (West 1979). Conflicts or contradictions in the
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evidence will not call for reversal if there is enough credible testimony to support a conviction
for delivery of a controlled substance. See Powers v. State, 737 S.W.2d 53, 55 (Tex.App.--San
Antonio 1987, pet. ref’d).
In Powers, the appellant contended that the evidence was insufficient to support his
conviction for the offense of delivery of cocaine. Id. at 54. There, an undercover narcotics agent
testified that he had received cocaine from the appellant. Id. at 55. A Department of Public
Safety chemist testified that the substance received by the undercover agent was cocaine. Id.
Applying the Jackson standard, the court found that “[t]he jury apparently believed this
testimony, and their verdict should not be disturbed.” Id.
Application
Here, Appellant argues that the evidence is legally insufficient for the following reasons:
(1) the record contains no evidence probative of an element of the offense, (2) the record
contains a mere modicum of evidence probative of an element of the offense, (3) the evidence
conclusively establishes a reasonable doubt, and (4) the acts alleged do not constitute the
criminal offense charged. We now review the State’s evidence in a light most favorable to the
verdict.
Ray Miller testified that he handed Appellant one hundred dollars, and Appellant handed
him a baggie containing a white, crystalline substance that purported to be methamphetamine.
Miller explained that one hundred dollars was the customary price for one gram of
methamphetamine. He performed a field test on the substance he received from Appellant that
produced a positive result for the presence of methamphetamine. Justin Caraway testified that,
while he did not visually witness the transaction between Appellant and Miller, he had an open
cell phone line, and the controlled buy went according to plan. William Chandley, a Department
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of Public Safety chemist, testified that he tested the substance and determined that it was
methamphetamine weighing 0.95 grams.
Although Appellant argues that Miller’s apparently conflicting testimony renders the
evidence legally insufficient to support his conviction, we resolve any inconsistencies in favor of
the verdict. See Moreno, 755 S.W.2d at 867. The jury assessed the credibility and weight of the
testimony offered by the State’s witnesses. The evidence supporting Appellants conviction for
delivery of methamphetamine clearly represents more than a “modicum.” Accordingly, taken in
the light most favorable to the verdict, the evidence is legally sufficient to permit a rational trier
of fact to find beyond a reasonable doubt that Appellant knowingly delivered methamphetamine
that, by aggregate weight, was less than one gram. We overrule Issue One.
INEFFECTIVE ASSISTANCE OF COUNSEL
In Issue Two, Appellant complains that he did not receive effective assistance of trial
counsel.
Standard of Review
We review ineffective assistance of counsel claims according to the United States
Supreme Court’s two-pronged Strickland test. Thompson v. State, 9 S.W.3d 808, 812
(Tex.Crim.App. 1999), citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). First, Appellant must show that “counsel’s performance was deficient, i.e.,
that his assistance fell below an objective standard of reasonableness.” Thompson, 9 S.W.3d at
812. Second, Appellant must prove prejudice by showing “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Id.
“Failure of [A]ppellant to make either of the required showings of deficient performance and
sufficient prejudice defeats the claim of ineffective assistance.” Rylander v. State, 101 S.W.3d
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107, 110 (Tex.Crim.App. 2003). We “look to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel.” Thompson, 9 S.W.3d at
813. Further, “any judicial review must be highly deferential to trial counsel and avoid the
deleterious effects of hindsight.” Id.
Defense Counsel’s Representation Did Not Fall Below The Objective Standard of
Reasonableness
When analyzing an ineffective assistance of counsel claim, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the [appellant] must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689,
104 S. Ct. 2065, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83
(1955). “To defeat the presumption of reasonable professional assistance, ‘any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.’” Thompson, 9 S.W.3d at 814, quoting McFarland v.
State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). In the majority of cases, however, “the
underdeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual
prongs of Strickland.” Thompson, 9 S.W.3d at 814 n.6. “Thus, 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.” Landers v. State, 110 S.W.3d 617, 622
(Tex.App.--Houston [14th Dist.] 2003, pet. ref’d). Appellant “must prove by a preponderance of
the evidence, that there is, in fact, no plausible professional reason for a specific act or omission”
to show ineffective assistance of counsel on direct appeal. Bone v. State, 77 S.W.3d 828, 836
(Tex.Crim.App. 2002).
Appellant contends he received ineffective assistance of counsel because: (1) defense
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counsel did not give an opening statement; (2) defense counsel did not acquaint himself with the
facts of the case, resulting in cross-examination of witnesses that was sorely lacking; and (3)
defense counsel did not present any evidence during the punishment phase of the trial. The
record does not provide evidence of counsel’s reasons for his actions during the trial.
Accordingly, Appellant must establish, by a preponderance of the evidence, that there is no
plausible professional reason for defense counsel’s acts or omissions during trial. See Bone, 77
S.W.3d at 836. We now examine defense counsel’s representation at the trial court.
Defense counsel declined to make an opening statement. This omission does not, by
itself, constitute ineffective assistance. See Taylor v. State, 947 S.W.2d 698, 704 (Tex.App.--
Fort Worth 1997, pet. ref’d)(stating declining to make an opening statement is a tactical decision
and did not render counsel’s performance deficient). Counsel cross-examined every one of the
State’s witnesses and attacked the credibility of the State’s confidential informant. Counsel
emphasized that Caraway did not actually see Appellant hand Miller the baggie containing the
crystalline substance. Appellant asserts that the cross-examination of Chandley was sorely
lacking, and that his attorney should have elicited a more thorough cross-examination of all of
the State’s witnesses. These complaints are without merit. See Matthews v. State, 830 S.W.2d
342, 347 (Tex.App.--Houston [14th Dist.] 1992, no writ)(stating “the decision not to cross-
examine is the result of wisdom acquired by an attorney’s trial experience,” and “[t]he amount of
cross-examination does not prove ineffective assistance”); see also Bone, 77 S.W.3d at 836
(stating “[a] vague, inarticulate sense that counsel could have provided a better defense is not a
legal basis for finding counsel constitutionally incompetent”).
Finally, Appellant claims he received ineffective assistance of counsel during the
punishment phase because counsel did not call any of Appellant’s family members to testify on
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his behalf. “A claim for ineffective assistance of counsel based on counsel’s failure to call
witnesses fails in the absence of a showing that such witnesses were available to testify and that
the [Appellant] would have benefitted from their testimony.” Brennan v. State, 334 S.W.3d 64,
79 (Tex.App.--Dallas 2009, no pet.). According to Appellant, “[h]ad defense counsel called
these family members, the jury would have likely reached a different sentence.” Appellant has
failed to show that such witnesses were available to testify and that the sentence would have
been different if they had testified.
We hold, based on the totality of defense counsel’s representation, that Appellant has not
satisfied his burden under the first prong of Strickland. Accordingly, we need not address
Strickland’s second prong, and Appellant’s ineffective assistance of counsel claim fails. See
Rylander, 101 S.W.3d at 110 (holding failure to prove first prong of Strickland defeats claim of
ineffective assistance). Having overruled each issue presented on appeal, we affirm the trial
court’s judgment.
October 24 , 2012 _______________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Do Not Publish)
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