No. 01-08-01017-CR
Opinion issued February 11, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 1134853.
Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
ELSA ALCALA, Justice.
Appellant, Erick Dewayne Chandler, appeals a judgment that convicts him for the delivery of a controlled substance, cocaine, weighing more than 4 grams and less than 200 grams, including any adulterants and dilutants. See TEX. HEALTH SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(d) (Vernon 2003 Supp. 2009). Appellant pleaded not guilty to the offense. The jury found him guilty, found true the punishment enhancement paragraph, and assessed his punishment at 40 years in prison. In two issues, appellant contends that his trial attorney rendered ineffective assistance of counsel by eliciting evidence that appellant had been involved in previous drug transactions and by failing to object to testimony that appellant was involved in extraneous drug transactions. We conclude appellant has failed to show that trial counsel's performance was deficient. We affirm.
Background
An undercover officer of the Houston Police Department narcotics division purchased small amounts of cocaine from appellant at his apartment complex. After two smaller transactions, the officer and appellant agreed to meet on January 29, 2007 at the apartment complex where he would sell her three ounces of cocaine for $1,435. On January 29, the officer went to appellant's apartment complex and parked. Appellant told her to wait in her van while he bagged up the drugs. Appellant came out of the apartment complex, got into the officer's van, and handed her a bag of cocaine he took from his pocket. The officer then gave appellant $50 and told him the rest was in the back of the van. After the officer got out of the van, an arrest team arrested appellant. The undercover officer and other officers collected additional narcotics, drug paraphernalia, and two scales from appellant's apartment after getting permission to conduct a search from Jolie Le Blanc, appellant's girlfriend with whom appellant lived four to five days a week. A criminalist with the Houston Police Department Crime Lab determined the substance appellant sold to the officer was cocaine weighing 84.5 grams. She also testified that the substances found in appellant's apartment were cocaine in a combined weight of 445.1 grams. She also confirmed residues from a scale, a Pyrex bowl, a plastic bag, and a fork tested positive for cocaine. Le Blanc said she witnessed appellant handing drugs to other people and cooking crack cocaine. She also stated individuals would come to the apartment looking for cocaine from appellant and that she did not report appellant to the police because she was afraid of him. Police officers charged appellant with two offenses, the delivery to the undercover officer and possession with the intent to deliver for the cocaine found in the apartment. He was tried for both offenses before a single jury that found him guilty of the delivery and not guilty for the cocaine in the apartment. Ineffective Assistance of Counsel
In his two issues, appellant contends that trial counsel's representation was ineffective. A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, appellant must show that trial counsel's performance was deficient and a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The first prong of the Strickland test requires that the defendant show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove, by a preponderance of the evidence, that trial counsel's representation objectively fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. Because the reviewing court must, however, indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, the defendant 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. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). We will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). In rare cases, however, the record can be sufficient to prove that counsel's performance was deficient, despite the absence of affirmative evidence of counsel's reasoning or strategy. See Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000). Such cases are limited to occasions where no reasonable attorney could have made such a decision. Weaver v. State, 265 S.W.3d 523, 538 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd). B. Analysis
In two issues, appellant contends he received ineffective assistance because his trial counsel "elicited evidence that appellant had been involved in previous drug transactions" and because his trial counsel "failed to object to testimony that appellant was involved in extraneous drug transactions." Appellant contends that, in questioning the undercover officer, his attorney elicited the fact that appellant had sold to her on previous occasions. He also contends that his attorney failed to object to testimony from appellant's girlfriend that appellant sold drugs to others in the past. Appellant did not obtain a motion for new trial, which would have afforded trial counsel an opportunity to explain his strategy, and no direct evidence in the record establishes why appellant's attorney acted as he did. We therefore presume that counsel had a plausible reason for his actions. See Thompson, 9 S.W.3d at 814. We next determine, however, whether this is one of those rare cases where no reasonable attorney could have made the decisions complained of in this appeal. See id. Trial counsel could have objected to the evidence about the prior drug transactions testified to by the undercover officer and appellant's girlfriend. Texas Rules of Evidence 404(b) does not allow evidence of other crimes, wrongs, or acts to prove a person's character or show conforming actions. See TEX. R. EVID. 404(b). Evidence of other crimes, however, is admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . ." Id.; see Cantrell v. State, 731 S.W.2d 84, 89 (Tex. Crim. App. 1987) (admitting extraneous offense evidence used to show intent for charged offense). Although appellant's trial attorney could have objected to the prior transactions but did not, failing to object can be a strategic move that is part of a sound trial strategy. See Stafford v. State, 813 S.W.2d 503, 508 (Tex. Crim. App. 1991) (finding appellant failed to rebut presumption of counsel's competence where counsel failed to object to admission of separate drug transaction). Here, the record supports the determination that trial counsel's failure to object was part of his trial strategy to show that the officer and Le Blanc were not credible. Appellant's counsel questioned the officer about her prior narcotics purchases from appellant after the State had already questioned her on the same purchases. Although he did not object to the evidence concerning the officer's prior purchases from appellant, appellant's counsel aggressively questioned the officer about the specifics of these transactions as part of a strategy aimed at showing her recollection of the transactions was not trustworthy. Counsel described this strategy in his closing argument when he said that the officer's testimony was not trustworthy because she could not remember details of the different transactions between herself and appellant. Counsel similarly argued that Le Blanc was not trustworthy because she was appellant's co-defendant trying to get an acquittal on the charge against her. The record supports that there was a trial strategy to allow appellant's girlfriend to discuss appellant's prior drug transactions so that the attorney could then attack her motives for testifying against appellant. Appellant has not shown that counsel's failure to object resulted in ineffective assistance; in fact, counsel's efforts resulted in the acquittal of appellant for one of the charges against him, the possession with intent to deliver a controlled substance weighing at least 400 grams charge, which was a first degree felony. See TEX. HEALTH SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(f) (Vernon 2003 Supp. 2009); TEX. PENAL CODE ANN. § 12.32 (Vernon 2003 Supp. 2009). We conclude appellant has not shown that his trial counsel's actions fell below an objective standard of reasonableness. We hold appellant does not meet the first prong of Strickland for both issues. See Thompson, 9 S.W.3d at 812. Because the evidence fails to show the first prong of Strickland, we need not address the second prong. We overrule appellant's two issues. Conclusion
We affirm the judgment of the trial court.