Olivia Carrion v. State ( 2016 )

Opinion filed May 19, 2016
In The
Eleventh Court of Appeals
__________
No. 11-14-00227-CR
__________
OLIVIA CARRION, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 10892-D
MEMORANDUM OPINION
The jury found Appellant, Olivia Carrion, guilty of possession of a controlled
substance, methamphetamine, by aggregate weight of four grams or more but less
than 200 grams, a second-degree felony. 1 The trial court assessed her punishment
at confinement for a term of ten years, suspended her sentence, placed her on
1
TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(a), d; TEX. PENAL CODE ANN.
§ 12.33(a) (West 2011).
community supervision for ten years, and imposed a fine of $4,000.2 Appellant does
not challenge the sufficiency of the evidence. In a single issue on appeal, she asserts
that her trial counsel rendered ineffective assistance of counsel. Appellant bases that
complaint on trial counsel’s decision to elicit testimony from a defense witness that
“opened the door” to otherwise inadmissible evidence of Appellant’s prior deferred
adjudication community supervision for the manufacture and delivery of cocaine.
We affirm.
I. Evidence at Trial
Rodney Smith, an officer with the Abilene Police Department, had worked as
a narcotics agent for more than twenty years. Agent Smith had completed arrests
for both possession of controlled substances and possession with intent to deliver
controlled substances. Smith explained that a typical user purchases less than a gram
of methamphetamine, which sells for $100, and will divide that amount into four or
five units to ingest separately; the controlled substances are generally packaged in a
small Ziplock baggie.
Smith had a “no knock” search warrant for Roy Carrion’s residence, which
was on the outskirts of Abilene in Taylor County. Agent Smith and several other
officers arrived at the residence (surveillance cameras were located on the outside
of the home); they entered after they forced the door open. They found three
individuals in the residence: Appellant; her husband, Roy Carrion; and a nine-year-
old child. Agent Smith read Roy and Appellant their Miranda3 rights. Agent Smith
contacted Child Protective Services to take temporary custody of the child.
Agent Smith reported that inside the residence the officers found a large
amount of methamphetamine worth approximately $3,500; plastic baggies; a small
2
The range of punishment for a second-degree felony is imprisonment for not more than twenty
year or less than two years, and an optional fine of up to $10,000 may also be imposed. TEX. PENAL
CODE ANN. § 12.33 (West 2011).
3
Miranda v. Arizona, 384 U.S. 436 (1966).
2
knife; Q-tips; electrical tape; a digital scale; methamphetamine “smoking pipes”, a
“plastic straw,” and other drug paraphernalia; a magnetic key holder; a safe key on
a key ring; a “War and Peace” book “stash box”; a digital safe and a Sentry safe; a
ledger and handwritten notes with numbers and letters that corresponded to drug
amounts and weights; men’s clothing; and a wallet. The police also found a
woman’s red coin purse; a pink garment bag; a pink purse; a metal container; a
cigarette case; a manicure case; women’s clothing, purses, bags, and shoes; a
backpack; women’s feminine products and other items; and mail addressed to
Appellant at the residence.
Some methamphetamine was found in “plain view,” and more was found in
the purse, the cigarette case, and the manicure case. Appellant admitted that the purse
was hers. Methamphetamine also was found in several other items located in the
residence. Appellant and Roy Carrion were in control of the premises when Agent
Smith arrived.
Ashley Zelinski is a forensic scientist with the Texas Department of Public
Safety. She has a bachelor’s degree in chemistry. Zelinski testified that she tested
the substances that were provided to her. The test results showed that the substances
were methamphetamine and weighed 34.04 grams.
Appellant testified on her own behalf. Appellant testified that she is disabled
and has several medical conditions, including chronic pancreatitis, celiac disease,
fibromyalgia, chronic depression, vitamin D deficiency, and other problems: in her
words, “a long list.”4 She married Roy Carrion in early 2012. After Roy’s trial and
conviction for possession with the intent to deliver more than four grams but less
than 200 grams of methamphetamine, which arose out of the same search as this
case, Appellant was diagnosed as bipolar and schizophrenic. Appellant said that her
4
Esther Mejia, Appellant’s mother, explained that Appellant had arthritis, post-traumatic stress
disorder, obsessive-compulsive disorder, and chronic depression.
3
purse was in the living room and that she did not use the pink purse. She bought one
safe to keep her medications in, but her husband had access to that safe; she said that
another safe, the black one, was his safe. She explained that they put cameras outside
the house because outside the house is scary and there are snakes and coyotes around.
Appellant admitted that she was on probation for a misdemeanor theft charge,
but she asserted that she had never failed a drug test.5 She was mad that her husband
had drugs in the house because it was not safe for her daughter, who is “her life.”
She testified that her husband is a convicted drug dealer and was on probation for a
drug conviction. She admitted that her master bathroom is decorated in Texas
Longhorn colors and symbols and that her husband had several Longhorn tattoos
and a “T” and “S” tattoo, but denied that she knew what a Texas Syndicate symbol
was.
Esther Mejia, Appellant’s mother, also testified. Mejia was shocked when the
police came to the residence and found drugs and other items. Appellant’s parents
owned the residence, but the house was for Appellant to use. Mejia said that she
saw Appellant use marihuana as a teenager but that she never saw Appellant, as an
adult, use illegal drugs. Mejia testified that she helps Roy, a convicted drug dealer,
with money for his commissary account. Mejia was aware of Appellant’s theft
probation. On cross-examination, Mejia testified that she knew that Appellant had
a prior drug charge and that Appellant had completed probation.
II. Analysis
Appellant complains that her trial counsel’s performance was deficient
because counsel “opened the door” to the admission of evidence of Appellant’s
deferred adjudication probation for manufacture and delivery of cocaine in 1998.
5
Matt Acklin, Appellant’s probation officer, testified that she had failed to report twice and that,
although her probation had expired, there was a pending motion to revoke; he said that she did pass all of
her drug tests.
4
She asserts that, but for this error, the outcome of her trial would have been different.
The standard of review for Appellant’s complaint of ineffective assistance of counsel
is whether counsel’s conduct “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984); see Davis v. State, 278 S.W.3d
346, 352 (Tex. Crim. App. 2009); Diaz v. State, 380 S.W.3d 309, 311 (Tex. App.—
Fort Worth 2012, pet. ref’d). The Strickland test has two prongs: (1) a performance
standard and (2) a prejudice standard. Strickland, 466 U.S. at 687.
For the performance standard, we must determine whether Appellant has
shown that counsel’s representation fell below an objective standard of
reasonableness. Id. If so, we then determine whether there is a reasonable
probability that the outcome would have been different but for counsel’s errors.
Wiggins v. Smith, 539 U.S. 510, 534 (2003); Strickland, 466 U.S. at 686; Andrews v.
State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). The reasonable probability must
rise to the level that it undermines confidence in the outcome of the trial. Isham v.
State, 258 S.W.3d 244, 250 (Tex. App.—Eastland 2008, pet. ref’d).
The second prong of Strickland focuses on prejudice to the defendant. “[T]he
analysis of the prejudice prong turns on whether the deficiency made any difference
to the outcome of the case.” Walker v. State, 406 S.W.3d 590, 599 (Tex. App.—
Eastland 2013, pet. ref’d) (quoting Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim.
App. 2012)). “This is a heavy burden which requires a ‘substantial,’ and not just a
‘conceivable,’ likelihood of a different result.” Id. at 599 (quoting United States v.
Wines, 691 F.3d 599, 604 (5th Cir. 2012)).
A failure to make a showing under either prong of the Strickland test defeats
a claim of ineffective assistance of counsel. Perez v. State, 310 S.W.3d 890, 893
(Tex. Crim. App. 2010); Andrews, 159 S.W.3d at 101. A reviewing court need not
consider both prongs of the Strickland test and can dispose of an ineffectiveness
5
claim on either prong. Walker, 406 S.W.3d at 594 (citing Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App. 2012)); see Strickland, 466 U.S. at 697.
Appellant asserts that her trial counsel was deficient when he asked Mejia,
“Did [Appellant] have any history with drugs?” Mejia answered that Appellant had
experimented with marihuana when she was fourteen. In response, the State was
permitted to ask Mejia if she was aware of Appellant’s arrest and deferred
adjudication in 1998. Mejia answered that she was aware of those things. Appellant
contends that the result of her trial would have been different but for the admission
of this otherwise inadmissible evidence. She claims that her trial counsel employed
an unsound trial strategy that undermined her defense.
Rule 609(c)(2) of the Texas Rules of Evidence prohibits the admission of prior
convictions in which the defendant successfully completed probation. Hernandez v.
State, No. 11-11-00123-CR, 2013 WL 2301989, at *3 (Tex. App.—Eastland May
23, 2013, pet. ref’d) (mem. op., not designated for publication). Relying on
Robertson and Ex parte Menchaca, we recently held that defense counsel’s
performance fell below an objective standard of reasonableness when defense
counsel, during the defendant’s direct examination, elicited evidence of two prior
convictions that were inadmissible under Rule 609. Vasquez v. State, No. 11-10-
00334-CR, 2012 WL 4826966, at *5–6 (Tex. App.—Eastland Oct. 11, 2012, pet.
ref’d) (mem. op., not designated for publication) (citing Robertson v. State, 187
S.W.3d 475, 483 (Tex. Crim. App. 2006); Ex parte Menchaca, 854 S.W.2d 128, 131
(Tex. Crim. App. 1993)). Even if we assume, without deciding, that defense
counsel’s performance at trial was deficient, because of the overwhelming evidence
of guilt, the outcome of Appellant’s trial would not have been different.
Agent Smith reported that, inside the residence, they found a large amount of
methamphetamine worth approximately $3,500, plastic baggies, electrical tape, drug
paraphernalia, a safe and a safe key on a key ring, and one other safe. The police
6
also found a woman’s red coin purse; a pink garment bag; a pink purse; a cigarette
case; a manicure case; women’s clothing, purses, bags, and shoes; women’s
feminine products; and mail addressed to Appellant at the residence. The police
found methamphetamine in a purse that Appellant admitted was hers;
methamphetamine also was found in several other places. Appellant was one of two
adults at the residence, which had been purchased by her parents for her use, and
methamphetamine was found in plain view in several places in the residence.
Because of the overwhelming evidence of Appellant’s guilt of possession of
a controlled substance, Appellant has failed to show that she was prejudiced by
counsel’s performance at trial; she has not shown that the outcome would have been
different if her previous arrest and deferred adjudication in 1998 had not been
admitted as evidence. After a review of the record, we hold that Appellant has failed
to meet the second prong of the Strickland test and, thus, has not established that she
received ineffective assistance of counsel. We overrule Appellant’s sole issue on
appeal.
III. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
May 19, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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