Thomas, Kato Jamal v. State

Opinion issued December 19, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00859-CR

KATO JAMAL THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 867695

O P I N I O N

Appellant, Kato Jamal Thomas, was charged by indictment with the felony

offense of possession with intent to manufacture or deliver cocaine. Appellant

pleaded not guilty, and the jury found him guilty of the lesser included offense of

possession of cocaine. The trial court assessed his punishment at 35 years’

confinement.

In two points of error, appellant asserts (1) the evidence was legally insufficient

to sustain the conviction and (2) he was denied effective assistance of counsel. We

affirm. Background

On February 1, 2001, Deputy Deke Warren observed Charles Barrett commit

several traffic offenses. Appellant was a passenger in Barrett’s vehicle at the time.

As Barrett drove into a Chevron gas station, Warren activated his emergency

equipment to initiate a traffic stop of the vehicle. Warren observed that Barrett

initially stopped, that both men looked back at him, and that Barrett then accelerated

the vehicle forward. Although Warren thought they were trying to flee, Barrett

stopped the vehicle as Warren pulled next to him and pointed a spotlight at him.

Warren then observed appellant moving variously toward the floorboard, the corner

of the seat, and the side of the door, appearing to be removing something from his

jacket pockets and his pants. Warren approached the vehicle, instructed Barrett to

keep his hands on the steering wheel, went to the passenger’s side, and instructed

appellant to step out of the vehicle. As appellant stepped out, Warren saw numerous

small white packets lying in plain view between the passenger door and the passenger

seat. As Warren handcuffed appellant, he asked appellant what was in the packets.

Warren testified that appellant replied, “Boss, I didn’t make any furtive movements.

You can’t put that on me because I didn’t make any furtive movements. . . . That’s

not mine.”

Warren believed the baggies contained cocaine. Therefore, he collected the

11 baggies, and field tested the contents; the result was positive for cocaine. Warren

placed appellant in the back of his patrol car while Barrett was placed in another

patrol car. Barrett then adamantly told Deputy Warren that the cocaine was not his.

Warren called a “hot spot unit” that specializes in drug interdiction. Deputy Shawn

Woelk, with the Harris County Sheriff’s Office Hot Spot Narcotics Enforcement

Team, arrived at the scene and took over the investigation. Woelk asked Barrett

where he lived, and Barrett stated that he and appellant were living at a Motel 6.

Barrett gave Woelk a key and consent to search his motel room. Upon searching the

motel room, deputies discovered a black duffle bag that contained a black digital

scale and some small, empty baggies. Woelk found $246 in small bills on appellant’s

person as he was being booked into the County jail.

Carol Ann Declouette, a forensic chemist with the Harris County Medical

Examiner’s Office, determined that the white substance found in the 11 baggies

totaled 3.61 grams of cocaine. Sufficiency of the Evidence

In his first point of error, appellant argues that the evidence was legally

insufficient to prove he knowingly or intentionally possessed the 11 baggies of

cocaine.

A legal sufficiency challenge requires us to determine whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Johnson v. State , 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State , 943

S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). As the exclusive

judges of the facts, the credibility of the witnesses, and the weight to be given their

testimony, the jury may believe or disbelieve all or any part of a witness’s testimony.

Penagraph v. State , 623 S.W.2d 341, 343 (Tex. Crim. App. 1981) (“A jury is entitled

to accept one version of the facts and reject another or reject any of a witness’s

testimony.”).

To establish unlawful possession of cocaine, the evidence must be sufficient

to show the accused knowingly exercised care, control, or management over the

controlled substance, was conscious of his connection with it, and knew what it was.

Brown v. State , 911S.W.2d 744, 747 (Tex. Crim. App. 1995). Evidence which

affirmatively links the accused to the controlled substance suffices for proof that he

possessed it knowingly. Id. The evidence used to satisfy these elements can be direct

or circumstantial. Id. Factors which may establish knowing or intentional possession

include whether: (1) the contraband was in plain view; (2) the contraband was

conveniently accessible to the accused; (3) the accused was the owner of the place

where the contraband was found; (4) the accused was the driver of the automobile in

which the contraband was found; (5) the contraband was found on the same side of

the car seat as the accused was sitting; (6) the place where the contraband was found

was enclosed; (7) the odor of contraband was present; (8) paraphernalia to use the

contraband was in view of or found on the accused; (9) conduct by the accused

indicated a consciousness of guilt; (10) the accused had a special connection to the

contraband; (11) occupants of the automobile gave conflicting statements about

relevant matters; (12) the physical condition of the accused indicated recent

consumption of the contraband found in the car; and (13) affirmative statements

connect the accused to the contraband. Gilbert v. State , 874 S.W.2d 290, 298 ( Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d).

Here, Deputy Warren testified that when appellant stepped out of the car, the

cocaine was in plain view, conveniently accessible to appellant, and located between

the car’s passenger door and the passenger seat where appellant had been sitting.

Warren also testified that appellant’s conduct indicated guilt, in that he observed

appellant removing items from his jacket and pants pockets and then making furtive

movements toward the vehicle floorboard and seat corner. Warren observed that

Barrett had both hands on the steering wheel and never leaned toward the passenger

seat. Additionally, appellant demonstrated knowledge of the cocaine when he stated,

“Boss, I didn’t make any furtive movements. You can’t put that on me because I

didn’t make any furtive movements. . . . That’s not mine.”

There was conflicting testimony regarding ownership of the cocaine. Barrett

testified at appellant’s trial that the cocaine was his and that he had told several of the

deputies that it was his at the time of the arrest. However, Deputy Warren testified

that Barrett adamantly denied ownership of the cocaine at the time of the arrest, that

he was not found in possession of any controlled substances; and that the first time

he, Deputy Warren, heard of Barrett’s claim of ownership was during appellant’s trial.

Deputy Woelk also testified that Barrett did not claim ownership of the cocaine on

the night of the arrest.

The jury is exclusive judge of the facts proved, the credibility of the witnesses,

and the weight to be given their testimony, and may believe or disbelieve all or any

part of a witness’s testimony. Penagraph , 623 S.W.2d at 343 . The evidence was

legally sufficient to support the jury’s finding of guilt. We overrule point of error

one. Ineffective Assistance of Counsel

In his second point of error, appellant argues that his trial attorney rendered

ineffective assistance of counsel by failing to object to (1) Deputy Warren’s testimony

regarding statements made by appellant, and (2) hearsay testimony regarding

statements made by Barrett.

To determine if a defendant has been denied effective assistance of counsel, we

follow the standard set forth in Strickland v. Washington , 466 U.S. 668, 687 , 104 S.

Ct. 2052, 2064 (1984). First, appellant must demonstrate that counsel’s

representation fell below an objective standard of reasonableness under prevailing

professional norms. Strickland , 466 U.S. at 688 , 104 S. Ct. at 2064 ; Howland v.

State , 966 S.W.2d 98, 104 (Tex. App.—Houston [1st Dist.] 1998), aff’d , 990 S.W.2d

274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel’s

performance was so prejudicial that it deprived him of a fair trial. Howland , 966

S.W.2d at 104 . Thus, appellant must show that a reasonable probability exists that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland , 466 U.S. at 694 , 104 S. Ct. at 2068 ; Howland , 966 S.W.2d at

104 . Appellant has the burden to establish both of these prongs by a preponderance

of the evidence. Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim. App. 1998);

Davis v. State , 830 S.W.2d 762, 765 (Tex. App.—Houston [1st Dist.] 1992, pet.

ref’d). We cannot speculate beyond the record provided. 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.). Appellant must overcome the presumption

that trial counsel’s strategy was sound. Gamble , 916 S.W.2d at 93 .

An appellant “making a claim of ineffective assistance must identify the acts

or omissions of counsel that are alleged not to have been the result of reasonable

professional judgment. ” Strickland , 466 U.S. at 690 ; 104 S. Ct. at 2066 . Any

allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State , 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). No motion for new trial was filed. The

record is silent as to what appellant’s counsel’s trial strategy was. To find that trial

counsel was ineffective based on either of the asserted grounds would call for

speculation, which we will not do. Gamble , 916 S.W.2d at 93 .

We overrule appellant’s second point of error.

Conclusion

We affirm the trial court’s judgment.

Lee Duggan, Jr.

Justice

Panel consists of Justices Hedges, Keyes, and Duggan.

Do not publish. Tex. R. App. P. 47.