Gerald Eugene Williams v. State

Opinion issued July 29, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NOS. 01-09-00257-CR

01-09-00258­CR

———————————

GERALD EUGENE WILLIAMS , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Case Nos. 1139688 & 1139689

MEMORANDUM OPINION

Appellant Gerald Eugene

Williams was convicted by a jury of the offenses of (1) possession with intent

to deliver 3, 4‑methylenedioxy methamphetamine (ecstasy) weighing more

than four grams but less than 400 grams (trial court case number 1139688,

appellate case number 01‑09‑00257‑CR) and (2) possession of marijuana

in a usable quantity of less than five pounds but more than four ounces (trial

court case number 1139689, appellate case number 01‑09‑00258‑CR). See

Texas Controlled Substances Act, Tex.

Health & Safety Code Ann. §§ 481.103(a) (1), 481.113(a), (d), 481.121(a), (b)(3) (Vernon 2010). Williams pleaded true in each offense to

prior felony convictions for possession of a controlled substance and aggravated

perjury. The jury assessed punishment for

the ecstasy offense at thirty years in prison and for the marijuana offense at

five years in prison and a $2,500 fine, both sentences to run concurrently. See

Tex. Penal Code Ann. §§ 12.33, 12.42(a) (2), (d) (Vernon Supp.

2009). Williams brings three issues, claiming legal and factual

insufficiency of the evidence and ineffective assistance of counsel. We affirm.

Background

Houston Police Officer D. Garza testified at trial that he was

assigned to the narcotics division in October 2007 when a confidential

informant assisted him in getting a narcotics search warrant on 6327 Hanley

Street. Garza executed the search

warrant twelve hours later, on October 31, 2007.

When Garza arrived at the scene, he saw a Chevy Tahoe backing

out of the driveway and asked uniformed police officers accompanying the search

team to stop the vehicle and detain the people in it. The search team consisted of Officers Byrd,

Walker, Corrales, and Morales, and Sergeant Lewis. The house had burglar bars on both the front

and back doors, and the team broke the lock to gain entry. No one was in the house at the time of the

search. The mailbox for 6327 Hanley had

the word “Williams” written on it.

Garza saw a gold Cadillac parked in front of the house. A later vehicle registration search indicated

the car was owned by Williams, with 6327 Hanley as the registration

address. Garza went outside and spoke

with Williams, giving him Miranda

warnings and presenting him with a copy of the search warrant. Garza also asked Williams if there were any

illegal narcotics, weapons, or money inside the house, and Williams told him

there was “some marijuana.”

The team then began its search of the house. Corrales was the canine officer, who

participated with his narcotics dog. In

the living room, Garza saw a shoebox on the sofa containing marijuana in

individually wrapped, clear sandwich bags.

In the garage, Garza saw three large bags of marijuana and

two large bags of ecstasy, one with 990 yellow tabs and the other with 400

blue-green tabs. Garza testified that the

yellow ecstasy tabs were in plain view and that the marijuana was packaged in

larger amounts and was not at that time ready for street sales. He estimated the street value of the yellow

tabs at $19,800 and the blue‑green tabs at $8,000. Garza also saw a wooden table with scratch

marks, which he testified were from razor‑blade use while breaking up

narcotics.

In the master bedroom, Garza saw a plate which he testified

was used to prepare and cut up larger amounts of narcotics for personal use or

individual sales. All of the clothes in

the closet were men’s clothing. He also

found a credit union statement and a credit card approval notice, both of which

were addressed to Williams at 6327 Hanley.

In the dining room, Garza saw a photograph of Williams

standing next to the gold Cadillac parked in front of the house. In the photo, Williams was wearing a black

hat and suit, which Garza testified were items of clothing he saw in the master

bedroom closet.

Garza saw multiple firearms in the house. First, he found a loaded shotgun in plain

view in the living room, propped up on the same sofa where he found marijuana

in a shoebox. Second, he found

a loaded Kel‑Tec 9 mm semi-automatic pistol and

a Browning .22 caliber semi-automatic p istol on

the dresser and in the closet of the master bedroom, respectively .

The dresser was the place where Garza also found the credit union

statement and the credit card approval notice.

In the living room, Garza saw clear sandwich bags. He testified that these bags were similar to

the bags containing marijuana found in the shoebox and that the bags were used

to make individual packets for sale.

On cross examination, Garza stated that the mailbox had

“Williams” on it, but no first name or initial.

The search team did not find any mail in the house addressed to anyone

other than Williams. During the

inventory search of Williams, the officers found a set of keys in his possession,

and Williams asked the officers to give them to a friend so she could secure

the house while he was in jail. Garza

did not ascertain if Williams’ keys fit the locks on the house. When asked how he knew that Williams lived in

the house, Garza replied, “He said so.”

Garza testified that he had seen the Cadillac parked in front

of the house when he first started his investigation, before the date of the

search. He did not know if the car was

operable, and he did not check to see if any of the keys found on Williams fit

the car. Garza was also asked about the

credit union statement, which was dated December 31, 2005. He did not know how long the credit card

approval notice had been in the house.

Garza was not aware that any fingerprints were taken off of

any of the firearms. He testified that

the police did not charge Williams for the marijuana found in the Chevy Tahoe,

but instead charged the other person who was with him in that vehicle. He also testified that the confidential

informant identified Williams only by his first name.

Garza conceded that he did not put the clothes found in the

closet next to Williams to see if they would fit, and he did not check to see

if any of the hats fit Williams’ head. He

testified that the grass under the Cadillac was longer than the surrounding

grass.

Garza testified the electricity was turned on at the house. He conceded that his police report did not

reflect that he asked Williams if he lived at 6327 Hanley within a month of the

search, whether Williams had keys to the house, whether Garza asked the other

passenger in the Chevy Tahoe if she lived at 6327 Hanley, or whether Garza

asked people in the neighborhood if they had seen Williams at the house or how

long the Cadillac had been in the yard.

On redirect examination, Garza testified that the search

warrant was based on a narcotics purchase from inside the house. Garza observed the house about five times in

the week before getting the search warrant.

During that time, Garza saw Williams three times—once coming out of the

house and twice standing in the front yard.

Garza stated that he saw incidents consistent with drug dealing and that

the Cadillac was parked in the front yard the whole week.

Garza testified that when Williams was arrested on the day of

the search, he had $1,050 in his possession, consisting of 23 $20 bills, 49 $10

bills, 13 $5 bills, and 35 $1 bills.

Garza testified that this distribution of bills was consistent with the

kind of bills a narcotics trafficker would have. Williams also had an unexpired Texas

identification card issued by the Department of Public Safety, which listed his

address as 6327 Hanley.

On re-cross examination, Garza testified that he called

Williams’ employer to verify that Williams had a job. Garza also conceded that he neither had proof

of a specific person to whom Williams sold drugs, nor whether there was someone

else in the house on the three occasions that Garza saw Williams at the house.

Houston Police Officer J. Bryant testified at trial that he

and his partner Officer A. Olivares participated in the October 31, 2007 search

of 6327 Hanley. It was their job to detain

anyone outside of the house on the property.

Bryant and Olivares first stopped the Chevy Tahoe that was backing out

of the driveway. The driver of the

vehicle was Williams, and the passenger was Odelia Roy. Bryant saw a bag of marijuana on the

vehicle’s center console.

On cross examination, Bryant testified that the police

determined that the marijuana on the car console belonged to Williams because

the vehicle belonged to him. He also

found marijuana in Roy’s purse, and the police filed charges against Roy for possession

of that marijuana. Bryant did not know

if Williams was read his Miranda

rights.

Bryant testified that he never heard Williams admit that the marijuana

in the house was his. Bryant was not

aware if anyone asked the neighbors who lived at 6327 Hanley.

Officer R. Corrales testified at trial that he is a narcotics

canine officer. The narcotics dog is

trained to “alert” on the presence of cocaine, marijuana, heroin, ecstasy, and

methamphetamine.

On the day of the 6327 Hanley search, the dog “alerted” on the

shoebox located on the living room sofa, a bag in the garage, the master

bedroom, and a sofa in the second bedroom.

After the house was searched, the officers hid some of the money they

found in Williams’ possession on the front porch, an area the dog had

previously examined and found clear. The

dog “alerted” on the place where the money was hidden, and Corrales testified

that this indicated the odor of narcotics on the money.

On cross examination, Corrales testified about a photograph taken

inside the house that shows a chest of drawers with a bottle of nail polish and

bracelets on it. Corrales testified that

nail polish is something normally used by women and that this suggested that a

woman was staying in the house. Corrales did not notice any women’s clothing in

the house.

Houston Police Officer R. Walker testified at trial that he

is a plain clothes narcotics officer and was part of the search team for 6327

Hanley. Walker was responsible for

collecting the evidence from the search and maintaining the chain of custody. Walker identified the marijuana from the

shoebox found in the living room. He

also found eight tabs in the shoebox, which he thought looked to be ecstasy. Walker then identified marijuana and ecstasy that

he found in the garage. Walker also found

30 tabs of Alprazolam (Xanax) in the garage.

On cross examination, Walker testified that he did not know

if any mail was found at 6327 Hanley that was addressed to someone other than

Williams. Walker said that the credit

union statement was found in a dresser drawer in the master bedroom, but he did

not remember seeing a credit card application.

Walker was not aware that any of the items from the house were submitted

to be searched for latent fingerprints.

A. Barker, a toxicologist with the Houston Police Department

crime laboratory, testified at trial that evidence seized from 6327 Hanley was 3, 4‑methylenedioxy methamphetamine

(ecstasy) and marijuana .

Analysis

I.

Legal sufficiency

of the evidence

In his first issue, Williams contends

the evidence is legally insufficient to establish that he possessed ecstasy with intent to deliver or possessed

marijuana in a usable quantity . Williams

specifically challenges whether the State has proved “possession” of the

ecstasy and marijuana, which the Texas Controlled Substances Act defines as “actual

care, custody, control, or management.” Tex. Health &

Safety Code Ann. § 481.002(38) (Vernon 2010).

The standard of review for legal

sufficiency of the evidence is whether, viewing the evidence in the light most

favorable to the verdict, 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 ,

318–19, 99 S. Ct. 2781 , 2788–89 (1979); King v. State, 29 S.W.3d 556,

562 (Tex. Crim. App. 2000). The jury is

the exclusive judge of the credibility of witnesses and of the weight of their

testimony. Margraves v. State , 34

S.W.3d 912, 919 (Tex. Crim. App. 2000).

To prove unlawful

possession of a controlled substance, the State must prove that the defendant

exercised control, management, or care over the substance and that he knew the

matter possessed was contraband. See Poindexter v. State , 153 S.W.3d 402, 405 (Tex. Crim.

App. 2005 ).

Regardless of whether the evidence is direct or circumstantial, it must

establish that a defendant’s connection to the contraband was more than

fortuitous. Id. at 405–06. However,

presence or proximity, when combined with other evidence, either direct or

circumstantial, e.g., “links,” may well be sufficient to establish the element

of possession beyond a reasonable doubt.

Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim.

App. 2006 ).

Though not an exhaustive list, the Court of Criminal Appeals has

recognized the following factors as links to establish possession: (1) the

defendant’s presence when a search is conducted; (2) whether the contraband was

in plain view; (3) the defendant’s proximity to and the accessibility of the contraband;

(4) whether the defendant was under the influence of narcotics when arrested;

(5) whether the defendant possessed other contraband when arrested; (6) whether

the defendant made incriminating statements when arrested; (7) whether the

defendant attempted to flee; (8) whether the defendant made furtive gestures;

(9) whether there was an odor of contraband; (10) whether other contraband or

drug paraphernalia was present; (11) whether the defendant owned or had the

right to possess the place where the contraband was found; (12) whether the

place where the contraband was found was enclosed; (13) whether the defendant

was found with a large amount of cash; and (14) whether the conduct of the

defendant indicated a consciousness of guilt.

Id. at 162 n.12.

When looking at the evidence in a light most favorable to the verdicts,

the State presented evidence for 9 out of these 14 factors. However, it is not the

number of links that is dispositive, but rather, the logical

force of all of the evidence, both direct and circumstantial. Id . at

162; Sambath Nhem v. State , 129 S.W.3d

696 , 699–700 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding links

consisting of defendant’s personal belongings found in same room as controlled

substance and controlled substance found on defendant’s person were sufficient

to affirm where defendant was arrested outside of house and defendant was not

in exclusive possession of house).

A. Links

Establishing Possession of Ecstasy

Factors 1 and 3: Williams’s presence when the search

was conducted, and Williams’s proximity to and the accessibility of the

contraband. Officers Garza and Bryant testified that when they arrived,

Williams was backing out of the driveway of 6327 Hanley where the ecstasy was found. Additionally, Williams asked the officers to

give his keys to a friend so she could secure and watch the house, implying

that he had access to the home and its contents.

Factor 2: Whether the contraband was in plain view. There was

testimony and photos concerning ecstasy in plain view on a sofa in the garage.

Factor 5: Whether Williams possessed other

contraband when arrested. Bryant testified that the marijuana found in

plain view in the Chevy Tahoe belonged to Williams.

Factor 6: Whether Williams made incriminating

statements when arrested. Garza testified that Williams said there was

“some marijuana” in the house.

Factor 10: Whether other contraband or drug

paraphernalia were present. The officers found marijuana and Xanax in the

house. Garza also saw a wooden table

having scratch marks, which he testified were from razor‑blade use while

breaking up narcotics. In the living

room, Garza saw clear sandwich bags and testified that the bags were used to

make individual packets for sale. In the

master bedroom, Garza saw a plate which he testified was used to prepare and

cut up larger amounts of narcotics for personal use or individual sales.

Factor 11: Whether Williams owned or had the right

to possess the place where the contraband were found. Garza and

Bryant testified that Williams’ Texas identification card listed 6327 Hanley as

his address. The mailbox for 6327 Hanley

had the word “Williams” written on it.

Garza found a

federal credit union statement and a credit card approval notice, both of which

were addressed to Williams at 6327 Hanley.

The gold Cadillac that Garza saw outside the house was owned by Williams

and registered using 6327 Hanley

as the registration address. In the dining room, Garza saw a

photograph of Williams standing next to the gold Cadillac parked in front of

the house. In the photo, Williams was

wearing a black hat and suit, which Garza testified were items of

clothing he saw in the master bedroom closet.

Finally, Williams asked the

officers to give his keys to a friend so she could secure and watch the house.

Factor 12: Whether the place where the contraband

was found was enclosed. The ecstasy was found in the garage.

Factor 13: Whether Williams was found with a large

amount of cash. Officers Garza and Bryant testified that

Williams had $1,050 in his possession, consisting of 23 $20 bills, 49 $10

bills, 13 $5 bills, and 35 $1 bills.

Garza testified that this distribution of bills was consistent with the

kind of bills a narcotics trafficker would have.

Weapon. Although not on the Evans list of factors, we note that

Garza found three firearms in the house: a loaded shotgun in plain view in the living room and a

loaded Kel‑Tec 9 mm semi-automatic pistol and

a Browning .22 caliber semi‑automatic

p istol on the dresser and closet of the master bedroom,

respectively .

B. Links

Establishing Possession of Marijuana

Factors

1, 3, 5, 6, 10, 11, and 13 are the same as those for ecstasy. The weapons factor is also the same. Factor 12, whether the place where the contraband

was found was enclosed is similar, as the marijuana was found in the house’s living

room and garage.

* * *

Viewing the evidence in the light most favorable to the

verdicts, we hold that a rational trier of fact could have found the essential

elements of both offenses, including the element of possession, beyond a

reasonable doubt. Accordingly, we overrule

the first issue.

II.

Factual

sufficiency of the evidence

In his second issue, Williams contends

the evidence is factually insufficient to establish that he possessed ecstasy with intent to deliver or possessed

marijuana in a usable quantity .

As with his legal sufficiency issue, Williams specifically challenges

whether the State has proved “possession” of the ecstasy and marijuana.

When conducting a factual sufficiency review, we view all of

the evidence in a neutral light. Cain

v. State , 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the

evidence is so weak that the verdict is clearly wrong and manifestly unjust or

(2) the verdict is against the great weight and preponderance of the

evidence. Johnson v. State , 23

S.W.3d 1, 11 (Tex. Crim. App. 2000).

Under the first prong of Johnson , we cannot conclude that a

conviction is “clearly wrong” or “manifestly unjust” simply because, on the

quantum of evidence admitted, we would have voted to acquit had we been on the

jury. Watson v. State , 204 S.W.3d

404, 417 (Tex. Crim. App. 2006). Under

the second prong of Johnson , we cannot declare that a conflict in the

evidence justifies a new trial simply because we disagree with the jury’s

resolution of that conflict. Id. Before finding that the evidence is factually

insufficient to support a verdict under the second prong of Johnson , we

must be able to say, with some objective basis in the record, that the great

weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we

must also discuss the evidence that, according to the appellant, most

undermines the jury’s verdict. See

Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not substitute our judgment for

that of the fact finder. King v. State ,

29 S.W.3d 556, 563 (Tex. Crim. App. 2000).

The fact finder alone determines what weight to place on contradictory

testimonial evidence because that determination depends on the fact finder’s

evaluation of credibility and demeanor. Cain ,

958 S.W.2d at 408–09. As the judge of

the credibility of the witnesses, the fact finder may choose to believe all,

some, or none of the testimony presented.

Id. at 407 n.5. The

standard for reviewing the factual sufficiency of the evidence is whether,

after considering all of the evidence in a neutral light, the jury was

rationally justified in finding guilt beyond a reasonable doubt. Watson , 204 S.W.3d at 415 .

On appeal, Williams does not substantively brief this issue

by providing references to the record that shows evidence that favors him. At trial, Williams argued that: (1) the

mailbox did not have Williams’ first name or initial on it; (2) the mail

found in the house was either from 2005 (the credit union statement) or undated

(the credit card approval notice); (3) Officer Garza did not check to see

if Williams’ keys fit the locks on the house; (4) Garza neither took the

clothes he found in the closet and put them next to Williams to see if they

would fit, nor did he take any of the hats and check to see if they fit

Williams’ head; (5) Officer Bryant was not aware if anyone asked the neighbors

who lived at 6327 Hanley; (6) Officer Walker was not aware that any of the

items from the house were submitted to be searched for latent fingerprints; and

(7) Officer Corrales testified that he saw a bottle of nail polish and

bracelets on it, which suggested that a woman was staying in the house.

Considering all of the evidence in a neutral light, the jury

could have found the essential elements of the both offenses, including the

element of possession, beyond a reasonable doubt. Accordingly, we cannot say that the jury’s verdicts

are against the great weight and preponderance of the evidence.

We overrule Williams’ second issue.

III.

Ineffective

assistance of counsel

In his third issue, Williams claims his trial counsel was

ineffective. To be entitled to a new

trial based on ineffective assistance of counsel, a defendant must show that

counsel’s performance was so deficient that he was not functioning as

acceptable counsel under the Sixth Amendment and that there is a reasonable

probability that, but for counsel’s error, the result of the proceedings would

have been different. See Strickland

v. Washington , 466 U.S. 668, 687 , 104 S. Ct. 2052, 2064 (1984); Hernandez

v. State , 726 S.W.2d 53 , 55–57 (Tex. Crim. App. 1986). The defendant bears the burden to prove

ineffective assistance of counsel. See Strickland ,

466 U.S. at 687 , 104 S. Ct. at 2064 .

Allegations

of ineffective assistance of counsel must be firmly founded in the record. McFarland v. State , 928 S.W.2d 482,

500 (Tex. Crim. App. 1996). The review

of trial counsel’s representation is highly deferential and presumes that

counsel’s actions fell within a wide range of reasonable professional

assistance. See Thompson v.

State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent on the motivations

underlying trial counsel’s tactical decisions, the appellant usually cannot

overcome the strong presumption that trial counsel’s conduct was

reasonable. See id.

In

most cases, the record on direct appeal is undeveloped and cannot adequately

reflect the motives behind trial counsel’s actions. See Mallett v. State , 65 S.W.3d

59, 63 (Tex. Crim. App. 2001). Because

the reasonableness of trial counsel’s choices often involves facts that do not

appear in the appellate record, the Court of Criminal Appeals has stated that

trial counsel should ordinarily be given an opportunity to explain his actions

before a court reviews that record and concludes trial counsel was

ineffective. See Bone v. State ,

77 S.W.3d 828, 836 (Tex. Crim. App. 2002).

A petition for writ of habeas corpus usually is the appropriate vehicle

to investigate ineffective-assistance claims.

See Mitchell v. State , 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002). Without proof in the record that

there is no plausible professional reason for trial counsel’s act or omission,

the reviewing court may not speculate on why counsel acted as he did. See Bone , 77 S.W.3d at

835–36.

On

appeal, Williams argues that his trial counsel failed the first prong of Strickland —i.e.,

counsel’s performance was so deficient that he was not functioning as

acceptable counsel under the Sixth Amendment—because counsel did not (1) file a

motion to suppress evidence because the affidavit for probable cause to issue

the search warrant “may” have been insufficient, (2) make an opening statement,

(3) request an article 38.23 charge, *

and (4) poll the jury. We address each

of these alleged deficiencies.

Motion to suppress evidence. Williams claims his trial counsel was

ineffective because trial counsel did not file a motion to suppress the evidence

from the search of the house. Williams

claims that the affidavit for probable cause to issue the search warrant “may”

have been insufficient. Williams,

however, does not present an argument on appeal to demonstrate that the

affidavit was insufficient. To establish

ineffective assistance of counsel for failure to file a motion with the court,

a defendant must demonstrate that he would have succeeded on the motion. Keller

v. State , 125 S.W.3d 600, 608 (Tex. App.—Houston [1st Dist.] 2003,

pet. dism’d) (citing Jackson v. State ,

973 S.W.2d 954, 957 (Tex. Crim. App. 1998)).

Opening statement. Williams next claims his trial counsel was

ineffective because trial counsel did not make an opening statement. The Court of Criminal Appeals has held that

although waiving an opening statement is one of the reasons reasonable people

can question the wisdom and rationale for trial counsel’s preparation and

strategy, that alone is not sufficient

to show ineffective assistance without allowing trial counsel to first

respond. See Rylander v. State , 101

S.W.3d 107, 110 (Tex. Crim. App. 2003).

Article 38.23 charge. Williams claims his trial counsel was

ineffective because trial counsel did not request an article 38.23 charge

concerning probable cause for the search warrant. See

Tex. Code Crim. Proc. Ann. art.

38.23 (Vernon 2005). A defendant must

meet the following three requirements before he is entitled to the submission

of a jury instruction under article 38.23(a): (1) the evidence heard by the

jury must raise an issue of fact; (2) the evidence on that fact must be

affirmatively contested; and (3) the contested factual issue must be material

to the lawfulness of the challenged conduct in obtaining the evidence. Madden

v. State , 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). On appeal, Williams does not identify the

material contested factual issue that would give rise to an article 38.23

charge. We also note that the affidavit

that formed the basis for the issuance of the search warrant was not introduced

into evidence and is therefore not in the appellate record.

Polling the jury. Williams claims his trial counsel was

ineffective because trial counsel did not poll the jury. While the Code of Criminal Procedure allows

the jury to be polled, there is no requirement that trial counsel do so. Tex.

Code Crim. Proc. Ann. art. 37.05 (Vernon 2006). There is nothing in the appellate record to

indicate any reason why trial counsel should have polled the jury. See

Belton v. State , 900 S.W.2d 886, 900

(Tex. App.—El Paso 1995, pet. ref’d) (rejecting ineffective‑assistance‑of‑counsel

claim for alleged failure to poll jury when claim is not supported by appellate

record).

It is

the defendant’s burden to prove there is no plausible professional reason for

trial counsel’s acts or omissions. See

Bone , 77 S.W.3d at 836–37 & n.29.

Without an evidentiary motion for new trial, we are not persuaded, based

on the existing appellate record and argument, that trial counsel could not

have had any plausible professional reasons for his actions. See id. (stating that counsel should ordinarily be accorded opportunity to

explain his actions before being condemned as unprofessional and incompetent) . We therefore hold that Williams has not met

his burden under the first prong of Strickland to prove that his trial

counsel was deficient. Because failure

to make the required showing of deficient performance will defeat an

ineffectiveness claim, we do not reach Williams’ argument on the second prong

of Strickland . See Thompson ,

9 S.W.3d at 813 .

We overrule

Williams’ third issue.

Conclusion

We affirm the trial court’s judgments.

Michael

Massengale

Justice

Panel

consists of Justices Jennings, Alcala, and Massengale.

Do not

publish. Tex. R. App. P. 47.2 ( b).

* Code of Criminal Procedure article 38.23 provides:

(a)

No evidence obtained by an officer or other person in violation of any

provisions of the Constitution or laws of the State of Texas, or of the

Constitution or laws of the United States of America, shall be admitted in

evidence against the accused on the trial of any criminal case.

In any

case where the legal evidence raises an issue hereunder, the jury shall be

instructed that if it believes, or has a reasonable doubt, that the evidence

was obtained in violation of the provisions of this Article, then and in such

event, the jury shall disregard any such evidence so obtained.

(b) It

is an exception to the provisions of Subsection (a) of this Article that the

evidence was obtained by a law enforcement officer acting in objective good

faith reliance upon a warrant issued by a neutral magistrate based on probable

cause.

Tex.

Code Crim. Proc. Ann. art. 38.23 (Vernon

2005).