Opinion

Aguirre, Carlo v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Sep 25, 2003
Status
Published
Cited by
0 cases
Authority
More cited than 35.1%

The opinion

In The

Court of Appeals

For The

First District of Texas

__ ____ ______

NO. 01-02-00386-CR

____________

CARLO AGUIRRE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 879108

MEMORANDUM OPINION

A jury found appellant guilty of possession with intent to deliver between four

and 200 grams of cocaine, and the trial court sentenced him to 25 years’ confinement.

We affirm.

Background

Officer Dale Crawford was conducting an undercover investigation of a drug-dealing suspect named John Mata. The officer observed appellant enter Mata’s

garage. Then Mata and appellant left in a van. Because an outstanding warrant

existed for Mata’s arrest, Officer Eric Nevle was stationed in a patrol car near Mata’s

house. As Officer Nevle attempted to pull Mata over, appellant exited the van and

ran from the officer. Officer Nevle observed appellant carrying a white object in his

hand. Officer Nevle chased appellant and successfully apprehended him. As Officer

Nevle grabbed appellant, he saw appellant throw the white object to the ground. The

officer recovered the white object, which was later found to contain 39 grams of

cocaine. At the time of the arrest, the officer also found marihuana in appellant’s

pants pocket.

In four points of error, appellant contends that (1) the evidence is legally and

factually insufficient, (2) the trial court improperly admitted evidence about the

marihuana possession, and (3) appellant received ineffective assistance of counsel.

Sufficiency of the Evidence

In his first and second points of error, appellant contends that the evidence is

legally and factually insufficient to support his conviction.

In evaluating legal and factual sufficiency, we follow the usual standards of

review. Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (legal

sufficiency); King v. State , 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual

sufficiency).

To establish unlawful possession of a controlled substance, the State must

show that (1) a defendant exercised care, custody, control, or management over the

controlled substance, and (2) that he knew he possessed a controlled substance. Tex.

Health & Safety Code §§ 481.002(38), 481.115 (Vernon Supp. 2003); Brown v.

State , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). In this case, Officer Nevle

testified that he observed appellant carrying a white object, which was found to be

cocaine, and watched as appellant threw it to the ground. Officer Nevle also testified

that the cocaine could not have come from anyone else. Viewing the evidence in the

light most favorable to the verdict, we hold that the evidence is legally sufficient to

show that appellant knowingly and intentionally possessed the cocaine.

We overrule the first point of error.

Finding the evidence legally sufficient, we proceed to appellant’s second point

of error, his factual sufficiency claim. In addition to the evidence that we considered

under the legal sufficiency point of error, we now consider the rest of the evidence.

Friends and family testified for appellant. These witnesses stated that they did

not see appellant throw anything to the ground, nor did they see Officer Nevle pick

anything up. Mata admitted that he possessed cocaine and had no knowledge about

whether appellant possessed cocaine at any time.

The jury, as the trier of fact, is the sole judge of the credibility of the witnesses

and of the strength of the evidence. Fuentes v. State , 991 S.W.2d 267, 271 (Tex.

Crim. App. 1999). The jury was free to disbelieve appellant’s witnesses and believe

the officers. See Jones v. State , 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Thus,

we hold that the evidence is factually sufficient.

We overrule the second point of error.

Evidence of Marihuana Possession

In his third point of error, appellant contends that the trial court erred when it

denied his motion to suppress evidence of his possession of marihuana at the time of

the arrest. We interpret this point of error to refer to the admission at trial of evidence

of his marihuana possession.

Appellant was charged with possession with intent to deliver cocaine. He was

not charged with possession of marihuana. He argues that any evidence about the

marihuana was inadmissible because it was an extraneous drug offense, and therefore,

was highly prejudicial.

Generally, evidence of other crimes, wrongs or acts is not admissible to prove

the character of a person in order to show that the person acted in conformity

therewith. Tex. R. Evid . 404(b). However, extraneous offense evidence is

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake. Id.

The trial court verbally instructed the jury as follows:

Members of the jury, any testimony regarding the defendant being in

possession of any other controlled substance other than the controlled

substance alleged in the indictment in this case, which is specifically

cocaine, may not be considered by you as any evidence of guilt in this

case. You can consider, if you first believe beyond a reasonable doubt

the defendant is guilty of possessing another controlled substance, and

then and only if you believe beyond a reasonable doubt he is guilty of

possessing a controlled substance, you can only consider that evidence

for the purpose of it aiding you, if it does aid you, in deciding whether

or not in this case, with respect to this charge, it supports evidence of

defendant’s intent, knowledge, motive, mistake, lack of mistake, in the

commission of this case, all right?

Additionally, the trial court included a similar limiting instruction in the jury

charge. These limiting instructions remedied any prejudicial effect that appellant’s

marihuana possession might have had on the jury. See Robinson v. State , 701 S.W.2d

895, 899 (Tex. Crim. App. 1985). We generally presume that the jury follows the

trial court’s instructions. See Colburn v. State , 966 S.W.2d 511, 520 (Tex. Crim.

App. 1998). We hold that the trial court did not abuse its discretion in admitting the

evidence.

We overrule the third point of error.

Ineffective Assistance of Counsel

In his fourth point of error, appellant contends that his trial counsel was

ineffective because counsel did not timely object to an alleged defect in the

enhancement paragraph of the indictment.

To prevail on an ineffective assistance claim, the defendant must prove (1) his

counsel’s representation fell below an objective standard of reasonableness, and (2)

the deficient performance prejudiced his defense . Strickland v. Washington , 466 U.S.

668, 687 , 104 S. Ct. 2052, 2064 (1984).

Appellant’s brief does not state why his counsel should have objected. There

was no motion for new trial, and no indication in the record that counsel was

ineffective. See Gamble v. State , 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.]

1996, no pet.). To find that counsel was ineffective based on these circumstances

would call for speculation, which we will not do. Id.

We overrule the fourth point of error.

Conclusion

We affirm the judgment of the trial court.

Adele Hedges

Justice

Panel consists of Justices Hedges, Nuchia, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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