Joel Mills v. State

Opinion issued February 16, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00068-CR

———————————

JOEL MILLS , Appellant

V.

THE STATE OF

TEXAS , Appellee

On Appeal from the 262nd District

Court

Harris County, Texas

Trial Court Case No. 1272675

MEMORANDUM OPINION

A

jury found appellant Joel Mills guilty of possession of cocaine [1]

and the court assessed his punishment at four years’ confinement and a $5,000

fine. Mills’s

single point of error contends that his court-appointed attorney’s failure to

object to or otherwise limit testimony that he was a drug dealer deprived him

of his Sixth Amendment right to effective assistance of counsel. We affirm.

Background

Mills was

transported by ambulance to Ben Taub Hospital pursuant

to a “person down” call. Houston Police

Department Officer Mark Knockaert , who responded to the

call and accompanied Mills to the hospital, did not search Mills, aside from a cursory pat down that yielded no results. Once Mills was admitted, Officer Knockaert left the hospital. Mills was still unresponsive at that time.

In the course of caring for Mills,

Nurse Trisha Small observed that Mills “appeared to be under the influence of

something.” Mills confided to her that

he had “dope” in his pants but Small could not find any. Mills himself then retrieved a small plastic

bag from his waistband, handed it to Small, and asked her to hold it for

him. The bag held several white nuggets,

later determined to be 0.3 grams of crack cocaine. Small asked Mills if he had used the

substance and he responded, “No. I don’t

do crack. I sell it.” Small turned the bag over to Nurse Jo

Robertson, her supervisor, and the two of them counted the nuggets and placed

them in a bio‑hazard bag. Officer Knockaert was summoned back to the hospital; after he

tagged the bag, he delivered it to the HPD evidence room.

Mills was subsequently arrested and

indicted for possession of less than one gram of cocaine . The court appointed Hattie Sewell Shannon to

serve as his defense counsel.

Mills

plead not guilty and requested a jury trial for the guilt-innocence phase. During trial, when asked by the State if

Mills said anything to her after he pulled the cocaine from his waistband,

Nurse Small replied, “Well, I asked him if that is what he had done; and he

said, ‘No. I don’t do crack. I sell it.’”

Mills’s counsel objected to Small’s answer as

nonresponsive and the court sustained the objection. Nurse Small was asked

about this again later, and Small again responded, “Well, I asked him if he

had done [the cocaine], he told me, no, that he sells it.” This time Mills’s trial

counsel did not object. In its closing

argument the State twice referred to Nurse Small’s testimony, but the

defendant’s trial counsel objected only when the State argued that Mills

intended to sell the cocaine.

Standard of Review

The Constitutions of

the State of Texas and the United States, as well as a Texas statute, guarantee

an accused the right to reasonably effective assistance of counsel. U.S. Const.

amend . VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp. 2011);

see Strickland v. Washington , 466 U.S. 668, 686 , 104 S. Ct. 2052,

2063 (1984); Ex parte Gonzales ,

945 S.W.2d 830, 835 (Tex. Crim. App. 1997). Proof of ineffective assistance of counsel

requires a defendant to show that (1) trial counsel’s representation fell below

an objective standard of reasonableness, based on prevailing professional

norms, and (2) there is a reasonable probability that the result of the

proceeding would have been different but for trial counsel’s deficient

performance. See

Strickland , 466 U.S. at

687–95, 104 S. Ct. 2064–69; Hernandez v. State , 726 S.W.2d 53 , 55–57 (Tex. Crim. App. 1986) (applying Strickland

test to review claim of ineffective assistance of counsel under Texas statutes

and constitutional provisions.).

“Reasonable

probability” means a “probability sufficient to undermine confidence in the

outcome.” Strickland , 466 U.S. at 694 , 104 S. Ct. at

2068 ; Mitchell v. State , 68 S.W.3d

640, 642 (Tex. Crim. App. 2002).

This requires showing “a reasonable probability that, absent the errors,

the factfinder would have had a reasonable doubt

respecting guilt,” not merely “that the errors had some conceivable effect on

the outcome of the proceeding.” Ex Parte Martinez ,

330 S.W.3d 891, 901 (Tex. Crim. App. 2011) . Our determination as to whether counsel’s actions “so compromised the proper functioning of

the adversarial process that the trial court cannot be said to have produced a

reliable result” is made by our review of the overall record. See id .

( citing Strickland ,

466 U.S. at 686 , 104 S. Ct. at 2064 ).

Discussion

Mills’s

sole point of error is that he was deprived of effective assistance of counsel

at trial. He contends that Nurse Small’s

testimony regarding his “I sell it” statement was inadmissible evidence of an

extraneous offense. Mills argues that since

intent to sell was not an element of the possession offense for which he was

charged, evidence of him selling drugs was neither relevant nor admissible and

Ms. Shannon’s failure to object, to request a limiting instruction, or to move

for a mistrial, fell below even the objective standard of reasonableness as

understood by the prevailing professional norms of the criminal courts of

Harris County. Mills further argues that

Ms. Shannon’s failure exposed the jury to prejudicial character evidence

affecting the outcome of the trial. Mills seeks a new trial.

The State responds that the testimony was admissible because

it tended to prove an element of the charged offense: that Mills knowingly possessed a controlled

substance. Further, the testimony of

Nurse Small served to rebut Mills’s counsel’s

implication in her closing argument that Mills did not possess the controlled

substance. As Ms. Shannon was not

required to object to admissible evidence, the State notes that her failures to

object do not fall below the professional norm.

Moreover, since the record is silent as to Mills’s

counsel’s motive, it may be inferred that her failure to object was a strategic

move to draw the jury’s attention away from the adverse testimony. The State further argues that the jury was

provided ample evidence to sufficiently prove the elements of the offense and

the admission of the “I sell it” testimony did not prejudice Mills.

Failure to meet either

prong of the Strickland test will

defeat a claim of ineffective assistance of counsel. Perez v. State , 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

As we are not required to analyze the two prongs in any particular

order, Martinez ,

330 S.W.3d at 901 , w e

note the second prong requires a reasonable probability that the outcome of the trial would

have been different but for trial counsel’s actions. Strickland , 466 U.S. at 694 , 104 S. Ct. at

2068 . Here, the State proved the

elements of the offense without the disputed evidence, and Mills has failed to

show with reasonable probability that the trial’s outcome would have been

different had his counsel objected and the testimony been excluded.

A guilty verdict

required the jury to conclude that “(1) the accused exercised control,

management, or care over the substance; and (2) he knew what he possessed was

contraband.” Evans v. State , 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); accord Perkins v. State , No.

14-09-00771-CR, 2011 WL 1260071 , at *2 (Tex. App.—Houston [14th Dist.] Apr. 5, 2011, no pet.) ( mem . op ., not designated for publication). Regardless of “[w] hether

the evidence is direct or circumstantial, it must establish that the defendant’s

connection with the drug was more than fortuitous.” Id .

The

jury heard testimony that Mills was unconscious, “appeared to be under the

influence of something,” confided in Nurse Small that he had “dope” in his

pants, then retrieved it from his waistband and asked Nurse Small to hold it

for him. Such evidence is more than

sufficient for the jury to conclude that he both possessed drugs and knew it to

be contraband. His own “I sell it”

statement would only serve to bolster this conclusion of the jury.

Consequently,

it is not reasonably probable that the exclusion of Mills’s

statement would have created a reasonable doubt. See

Martinez , 330 S.W.3d at 904 (finding

no reasonable probability that outcome of trial would have been different when

elements of offense were sufficiently proven despite admission of evidence that

defendant was gang member); Ex parte Napper , 322 S.W.3d 202 , 249–51 (Tex. Crim.

App. 2010) (no reasonable probability that admission of potentially flawed DNA

evidence affected outcome of trial); Ledezma v. State ,

No. 14-09-00483-CR, 2010 WL 4514386 , at *5 (Tex. App.—Houston [14th Dist.] Nov. 9, 2010, pet. ref’d )

( mem . op., no designated for publication) (no

reasonable probability that failure to object to admission of extraneous

offense evidence affected outcome of trial when offense was sufficiently proven

by other evidence). Without determining

whether Mills’s counsel’s performance was deficient,

we hold that his claim of ineffective assistance of counsel fails because he

has not shown that there

is a reasonable probability that the result of the proceeding would have been

different but for trial counsel’s alleged deficient performance . See Batiste v. State , 217 S.W.3d 74, 84 (Tex. App.—Houston

[1st Dist.] 2006, no pet.).

Conclusion

The State

offered evidence which sufficiently proved the elements of possession of a

controlled substance. Mills has not

shown within reasonable probability that the outcome of the trial would have

been any different but for his counsel’s inaction. Accordingly, Mills has failed to demonstrate

ineffective assistance of counsel. We

affirm the judgment of the trial court.

Jim

Sharp

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R.

App. P. 47.2( b).

[1] See Tex.

Health & Safety Code Ann. § 481.115(a), (b) (West 2010) (possession of less than one gram of

Penalty Group 1 substance is state jail felony).