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Hodge v. State

Court of Appeals of Texas, Eleventh District, Eastland
Jun 28, 2007
No. 11-05-00239-CR (Tex. App. Jun. 28, 2007)

Opinion

No. 11-05-00239-CR

Opinion filed June 28, 2007. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).

On Appeal from the 39th District Court, Haskell County, Texas Trial Court Cause No. 6010.

Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.


OPINION


A jury convicted Mitzi Denise Hodge of possessing cocaine, in the amount of more than four grams but less than two hundred grams, with the intent to deliver. The jury assessed punishment at fifteen years confinement in the Texas Department of Criminal Justice, Institutional Division, and a $5,000 fine. We affirm.

Background Facts

Relying on a tip from a confidential informant, officers obtained a search warrant to search appellant's residence. When the officers conducted the search of the residence, appellant was present along with her boyfriend, Jimmy Lee Daniel. During the search, officers found 24.45 grams of cocaine and 5.43 ounces of marihuana along with other drug-related items. Appellant was indicted for possession of cocaine with the intent to deliver. She pleaded not guilty and proceeded to a jury trial.

Issues on Appeal

In four issues, appellant contends that the evidence was legally and factually insufficient to establish possession and that the evidence was legally and factually insufficient to establish intent to deliver. In appellant's fifth issue, she contends that she received ineffective assistance of counsel.

Standard of Review

In order to determine if the evidence is legally sufficient, we review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App. 2000). In order to determine if the evidence is factually sufficient, we review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Then, we must decide whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The fact-finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). The fact-finder may choose to believe or disbelieve all or any part of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986).

Possession

Appellant contends that the evidence is legally and factually insufficient to show that she was in possession of cocaine. In order to prevail in a possession of controlled substance case, the State must prove either directly or circumstantially that the accused exercised actual care, custody, control, or management over the contraband and that the accused knew the matter possessed was contraband. TEX. HEALTH SAFETY CODE ANN. § 481.002(38) (Vernon Supp. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The evidence must affirmatively link the accused to the offense so that one may reasonably infer that the accused knew of the contraband's existence and exercised control over it. Linton v. State, 15 S.W.3d 615, 619 (Tex.App.-Houston [14th Dist.] 2000, pet. Ref'd). Mere presence at the location where drugs are found is insufficient by itself to establish actual care, custody, or control of the drugs. Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006). However, presence or proximity when combined with other evidence may be sufficient to establish possession. Id. Factors that may affirmatively link an accused to contraband include the following: (1) whether the accused was present when the search was conducted; (2) whether the contraband was in plain view; (3) whether the accused was in close proximity to and had access to the contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed other contraband or narcotics when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the accused owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n. 12; Swarb v. State, 125 S.W.3d 672, 684 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd); Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the defendant to the contraband. Bates v. State, 155 S.W.3d 212, 216-17 (Tex.App.-Dallas 2004, no pet.); Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-Austin 1991, pet. ref'd). In this case, the evidence established that appellant exercised care, custody, and control over the cocaine. Officer Winston Stephens testified that he was present when the search warrant was executed on appellant's residence. He stated that he began his search by asking appellant where the drugs were. Appellant pointed out marihuana in her bedroom in a dresser drawer. Officer Stephens testified that next in his search he found an overnight bag in the hall closet containing marihuana and electronic scales. Officer Donald Matthew Cunningham testified that he participated in the search of appellant's residence. He testified that he searched the bathroom that was close to the master bedroom. In the bathroom, he observed feminine bath products and knickknacks. He further testified that he discovered a bath sponge with a slit in the top. Inside the slit was what he believed to be crack cocaine. Officer Cunningham testified that there was no indication that a man had used the bathroom or used the bath sponge. Officer Gary Lee Rowland testified that he participated in the search of appellant's residence. He testified that he discovered marihuana and several "rock-like substances" buried in the soil of a fish aquarium that had been converted into a plant holder for a large ivy. He further testified that these rock-like substances appeared to be crack cocaine. Officer Rowland testified that in the master bedroom he found a large sum of money, $760, rolled up in a sock. Appellant told Officer David Halliburton that it was her money. Chief of Police Thomas Paul Bassett Jr. testified that a confidential informant informed him that appellant was in possession of crack cocaine. He testified that in the past he had found this informant reliable almost one hundred percent of the time. Chief Bassett further testified that the informant had been inside appellant's house within twenty-four hours before the search was conducted. The confidential informant did not mention any other persons in connection with the drugs. Chief Bassett's investigation revealed that Donnell Hodge, appellant's son, did not live at the residence; he lived and worked in Abilene. Chief Bassett also testified that Jimmy Lee Daniel, who was present at the residence at the time of the search, did not live at the residence and had just recently arrived. Appellant and her son Jakaan Hodge were the only actual residents of the house. Donnell testified that he was visiting appellant the weekend the house was searched but that he was not present when the warrant was executed. He testified that the gray bag found in the hall closet was his. He admitted that the marihuana in the bag was his, that the scales were his, and that he used the scales to measure the amount of marihuana he bought. He further testified that the marihuana found in the bedroom dresser drawer was his. Donnell denied any knowledge or ownership of any of the cocaine. The State established several affirmative links connecting appellant to the cocaine. Appellant was an occupant of the residence and had easy access to the drugs. Officers found cocaine in the bathroom that was clearly occupied and used by appellant. Officers found a significant amount of cocaine in a plant holder that contained a well-cared-for plant. This would not be a logical or accessible place for a visitor to hide drugs, however, it would be easily accessible to the resident who was caring for the plant. Further, appellant told officers where some of the drugs could be found and admitted that the large amount of cash was hers. Applying the applicable standards or review, the evidence is legally and factually sufficient to support the jury's finding that appellant possessed cocaine. We overrule appellant's first and second issues on appeal.

Intent to Deliver

Appellant contends that the evidence is legally and factually insufficient to show that she possessed cocaine with the intent to deliver. The intent to deliver a controlled substance may be proven by circumstantial evidence. Ingram v. State, 124 S.W.3d 672, 675-76 (Tex.App.-Eastland 2003, no pet.). Inferences regarding the intent to deliver can be made from the conduct of the defendant as well as the amount of the controlled substance possessed and the manner in which it was possessed. Id.; Rhodes v. State, 913 S.W.2d 242, 251 (Tex.App.-Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex.Crim.App. 1997). Several factors are considered in determining intent including: (1) the nature of the location where the defendant was arrested; (2) the quantity of drugs the defendant possessed; (3) the manner of packaging of the drugs; (4) the presence or absence of drug paraphernalia (for use or sale); (5) whether the defendant possessed a large amount of cash in addition to the drugs; and (6) the defendant's status as a drug user. Jordan v. State, 139 S.W.3d 723, 726 (Tex.App.-Fort Worth 2004, no pet.). The evidence was sufficient to establish that appellant possessed the cocaine with the intent to deliver. Officer Rowland found a large amount of cash rolled up in a sock in the master bedroom. Appellant admitted the money was hers. Officer Stephens testified that in his experience digital scales, like the scales he found in appellant's residence, are used to weigh and measure out drugs. Officer Halliburton testified that the sandwich bags discovered in appellant's residence are used to package illegal narcotics. Even though Donnell testified that the digital scales were his, the jury was free to believe or disbelieve his testimony. The evidence showed that appellant possessed an amount of drugs that would indicate she was selling drugs rather than using them for personal use. Officers found over twenty-four grams of cocaine in appellant's residence. Officer Stephens testified that crack cocaine is mostly sold in "rocks." Usually one gram of crack cocaine will make about five "twenty dollar rocks." Officer Cunningham testified that an average user of crack cocaine would carry about three of four rocks for daily use and up to ten to twelve rocks for a big weekend. Officer Rowland testified that the crack cocaine he found in the fish aquarium were large rocks called "cookies." He stated, "A cookie is a big piece of finished product that they will actually cut more rocks out of for individual sales, usually $20 a rock." Officer Rowland also testified that the cookies were the biggest rocks he had ever seen. Chief Bassett testified that, in his fifteen years of law enforcement in Richardson, Dallas, and Haskell, the amount of cocaine seized at appellant's house was the most he had ever found. Applying the applicable standards of review the evidence was legally and factually sufficient to show that appellant possessed the cocaine with the intent to deliver. We overrule appellant's third and fourth issues on appeal.

Ineffective Assistance of Counsel

In appellant's fifth issue, she contends that she received ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must establish that her lawyer's performance fell below an objective standard of reasonableness and that there is a "reasonable probability" the result of the proceeding would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). The purpose of this two-pronged test is to judge whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App. 1992). The review of defense counsel's representation is highly deferential and presumes that trial counsel's actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App. 1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex.App.-Eastland 2005, pet. ref'd). When the record is silent on the motivations underlying trial counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable. Thompson v. State, 9 S.W.3d at 813. In order to defeat Strickland's 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." Id. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Id. Appellant contends that she received ineffective assistance of counsel because trial counsel failed to object to hearsay statements. Chief Bassett testified that the confidential informant told him that appellant was in possession of cocaine. When the hearsay statement came into evidence the second time, trial counsel objected but failed to ask for an instruction to disregard. While trial counsel could have objected to some of the complained-of testimony, we cannot rule out that there was some sound trial strategy for not objecting. Advocates must be free to choose to not make objections even if they have a legal basis for doing so. McKinny v. State, 76 S.W.3d 463, 473 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The record contains no evidence of the reasoning behind trial counsel's actions in failing to object to the hearsay statement. Therefore, we cannot conclude that counsel's performance was deficient. We overrule appellant's fifth issue on appeal.

Conclusion

We affirm the judgment of the trial court.


Summaries of

Hodge v. State

Court of Appeals of Texas, Eleventh District, Eastland
Jun 28, 2007
No. 11-05-00239-CR (Tex. App. Jun. 28, 2007)
Case details for

Hodge v. State

Case Details

Full title:MITZI DENISE HODGE, Appellant v. STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Eleventh District, Eastland

Date published: Jun 28, 2007

Citations

No. 11-05-00239-CR (Tex. App. Jun. 28, 2007)