Opinion
No. 05-03-01735-CR
Opinion issued July 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 2, Dallas County, Texas, Trial Court Cause No. F00-32819-MI. Affirmed as Modified.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
OPINION
Ramiro Cano, Jr. appeals his conviction for possession with intent to deliver cocaine in an amount exceeding 400 grams. The trial court found appellant guilty and sentenced him to twenty years' confinement and a $10,000 fine. In four issues, appellant argues the trial court erred in denying appellant's motion to suppress, the evidence is legally insufficient to support his conviction, he received ineffective assistance of counsel, and the trial court's judgment should be reformed to reflect that there was no plea bargain agreement. As reformed, we affirm the trial court's judgment. On October 4, 2000, Irving police officer Stephen Smith worked with the Drug Enforcement Administration (DEA) as part of the narcotics task force. As part of his duties, he made drug buys and worked with confidential informants. As part of a "buy bust operation," a confidential informant was to meet with a drug dealer at a restaurant in Dallas, view four kilos of cocaine, and inform the dealers they were to follow him to Irving where they were to meet the person with the money to buy the cocaine. Smith and DEA special agent Gallo set up surveillance on the restaurant and saw appellant drive up with another man, Humberto Chavez. When appellant arrived, the informant walked over to the passenger door of appellant's car, conversed for about a minute, and appellant and Chavez got out of the car and walked to the rear of the car. Appellant opened the trunk with a key, and appellant, Chavez, and the informant looked inside the trunk. After a brief conversation, appellant and Chavez got back in the car, and the informant gave the pre-arranged signal that he had viewed the cocaine in the car. The informant got in his car and, with appellant following, drove into Irving. Smith had previously arranged for Irving patrol officer Joe Rios to be in a marked patrol car at the south city limits of Irving. On the police radio, Smith described appellant's car to Rios and informed him that appellant had four kilos of cocaine in a black backpack in his trunk. Smith saw Rios activate his lights and pull appellant over. Rios ran appellant's driver's license and determined appellant had outstanding warrants for his arrest. Appellant was arrested, and police took possession of the black backpack containing the cocaine. In a subsequent trial before the court, appellant was convicted of possession with intent to deliver cocaine in an amount exceeding 400 grams, and this appeal followed. In his first issue, appellant argues the trial court erred in denying his motion to suppress evidence obtained incident to his arrest. Specifically, appellant complains of the State's failure to produce at the hearing certified copies of the outstanding warrants for his arrest. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but we review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). In determining probable cause, courts must consider the totality of the circumstances. Angulo v. State, 727 S.W.2d 276, 278 (Tex.Crim.App. 1987). Probable cause exists where officers have reasonably trustworthy information sufficient to warrant a reasonable belief that an offense has been or is being committed. McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App. 2003); Blaylock v. State, 125 S.W.3d 702, 706 (Tex.App.-Texarkana 2003, no pet.) (arresting officers had probable cause where confidential informant arranged cocaine purchase with appellant, gave officers description of appellant's car, and accurately predicted location and time of arranged purchase). Here, Smith testified the informant had been a DEA informant for about fifteen years, and Smith had worked with the informant before and considered him reliable. Based on the informant's dealing with appellant and the informant's pre-arranged signal that he had viewed cocaine in appellant's car, Smith believed he had probable cause to go into appellant's car. We agree. See McGee, 105 S.W.3d at 614; Blaylock, 125 S.W.3d at 706. Further, the record reflects that, though not produced at the hearing on appellant's motion to suppress, certified copies of the outstanding warrants were produced when appellant reopened his motion to suppress at the guilt/innocence phase of trial. Accordingly, we conclude the trial court did not err in overruling appellant's motion to suppress. See Villarreal, 935 S.W.2d at 138. We overrule appellant's first issue. In his second issue, appellant argues the evidence is legally insufficient to support his conviction. Specifically, appellant argues there is no independent evidence corroborating the informant's testimony as required by article 38.141 of the code of criminal procedure. When we review the legal sufficiency of the evidence, 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. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Article 38.141 provides the following:
(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005). In interpreting the meaning of article 38.141, we look to case law interpreting the similarly-worded article 38.14. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Young v. State, 95 S.W.3d 448, 450-51 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). In determining whether there is "other evidence" to connect an accused with the offense under article 38.14, a court must eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App. 1997); Young, 95 S.W.3d at 451. In determining whether the article 38.141 "other evidence" requirement was satisfied, we will follow the approach used in McDuff and eliminate from our consideration all of the informant's testimony. See Young, 95 S.W.3d at 451. The requirements of article 38.141 will have been met if we find some "other evidence" that tended to connect appellant with the cocaine transaction. Here, the record shows appellant drove a car containing four kilos of cocaine to a pre-arranged drug transaction. A confidential informant well-known to police spoke with appellant at the meeting. Appellant used a key to open the car's trunk, and he showed the informant the cocaine. The informant gave police the sign that he had viewed cocaine, and appellant followed the informant to Irving where police stopped appellant. In addition to the four kilos of cocaine in the trunk, police found a paper dealer's tag showing appellant as the buyer of the car. We conclude this was sufficient "other evidence" that tended to connect appellant with the cocaine transaction. See McDuff, 939 S.W.2d at 612; Young, 95 S.W.3d at 451. We overrule appellant's second issue. In his third issue, appellant argues he received ineffective assistance of counsel. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. Appellant complains he received ineffective assistance of counsel because (1) he paid his counsel $95,000 during the three years the case was pending; (2) his counsel never discussed the possibility of a conflict of interest due to the involvement of counsel for his co-defendant; (3) his counsel assured him that appellant's co-defendant, not appellant, would be found guilty of the offense; (4) his counsel failed to timely order the reporter's record from the motion to suppress hearing; (5) his counsel refused to review some of the State's evidence; and (6) his counsel did not inform him that he was ineligible for parole until the day of sentencing. At the hearing on appellant's motion for new trial, appellant testified he paid his counsel a $10,000 retainer after appellant was arrested. Over the three years of the representation, appellant did not see or interact with his counsel "as often as [appellant] thought he should." Appellant's co-defendant, Chavez, had retained separate counsel, but appellant's counsel and Chavez' counsel worked together. However, neither attorney discussed the possibility of a conflict of interest. Appellant's counsel told appellant that, "if things weren't going well," Chavez would be the "fall guy." According to appellant, his parents paid his counsel approximately $45,000 or $50,000, and appellant paid the remainder of the $95,000 total. Appellant repeatedly asked his counsel about possible plea bargains, but he "would never reply." Appellant thought the worst case scenario was that he would receive probation, and his counsel never discussed the possible range of punishment. According to appellant, his counsel talked about appellant buying him a vehicle and asked appellant to buy a $2000 trip to Colombia for him. On the day of trial, appellant's counsel did not have transcripts of the motion to suppress hearing even though appellant had paid for the transcripts. On cross-examination, appellant agreed that he was well-versed in the English language and could read, write, and speak English well. Appellant admitted he knew of a plea bargain offer of twenty-five years, but he stated he got a letter concerning the offer and had to ask his counsel about it. Appellant agreed that he had twice told the trial judge that he wanted to waive his right to a jury but stated that he did so on the advice of counsel. When confronted with his signed jury waiver, appellant conceded that it was his signature on the document but maintained that he "wasn't aware of all the stipulations." Appellant further agreed his counsel had succeeded in getting the State to turn over records even though the State's position was that the records were not relevant to the case. Regarding the transcripts appellant's counsel did not timely obtain, appellant admitted that the transcripts were ready when trial started. With respect to the payments appellant made to his counsel, appellant said the payments were mostly in cash, and he produced bank records showing checks totaling $5580. Appellant's mother, Nachita Cano, testified that she had asked when she testified at punishment that appellant receive "parole," but she meant probation. Cano testified she and her husband had paid appellant's counsel between $30,000 and $40,000 in cash but received no receipts for any of the payments. Cano and the family all thought appellant would receive probation. On cross-examination, Cano testified she did not remember asking the judge to sentence appellant to the minimum, fifteen-year sentence. Our review of the record from punishment shows that Cano testified she understood that the range of punishment was "no less than fifteen years in prison up to ninety-nine in prison or life." Later, Cano testified she understood that the judge had to sentence appellant to prison but then stated "I would say if he could be out on parole if at all possible." Viewing the evidence in the light most favorable to the trial court's ruling in this case and presuming that all reasonable factual findings that could have been made against the losing party were made against that party, we conclude appellant did not receive ineffective assistance of counsel, and the trial court did not err in denying appellant's motion for new trial on those grounds. See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). The trial judge was free to accept or reject any part of the witnesses' testimony and conclude that appellant's testimony did not establish his counsel was ineffective. See id. at 208 n. 7. Further, the record in this case is silent as to trial counsel's strategy or reasoning during the course of his representation of appellant. Appellant's counsel did not testify at the hearing on appellant's motion for new trial. Therefore, appellant has failed to rebut the presumption that his counsel provided reasonable assistance. See Thompson, 9 S.W.3d at 814. Further, we cannot conclude a reasonable probability exists that, but for trial counsel's failure to act, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Under these circumstances, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's third issue. In his fourth issue, appellant asks this Court to reform the trial court's judgment to reflect that there was no plea bargain in this case. The State does not object to this request, and the record reflects that there was no plea bargain in this case. We sustain appellant's fourth issue. Accordingly, the trial court's judgment is ordered reformed to reflect that there was no plea bargain agreement in this case. As reformed, the trial court's judgment is affirmed.