Marcus Donel Polley v. State

NOS. 12-15-00040-CR

12-15-00041-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARCUS DONEL POLLEY, § APPEALS FROM THE

APPELLANT

V. § COUNTY COURT AT LAW

THE STATE OF TEXAS,

APPELLEE § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

Marcus Donel Polley appeals his convictions for driving while intoxicated and possession

of marijuana. In two issues, Appellant argues that he received ineffective assistance of counsel.

We affirm.

BACKGROUND

Just before noon on October 10, 2013, while mowing the lawn at a rental property he

owned, Charles Curl was disturbed by a vehicle that suddenly drove onto the lawn. The

vehicle’s lone occupant jumped out of the vehicle and pointed what Curl believed to be a

handgun at him.1 Curl recognized the driver as Appellant, his friend. Appellant momentarily sat

back down in the car. But he then exited the vehicle and again made the threatening gesture at

Curl. Appellant reentered the vehicle, backed up quickly, struck a tree in Curl’s yard, and sped

away.

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Police officers later discovered that Appellant did not have a firearm. He appeared to have used a hand

gesture or held some device in his hand that resembled a handgun.

Curl, who was in distress, called 911 and described what happened to him. Moments

later, the police received another call that a vehicle had just crashed into a chain link fence not

far from Curl’s home. Sergeant Keith Hawkins found the vehicle parked at a home with

Appellant seated in the driver’s seat. Sergeant Hawkins noticed that the chain link fence was

under the vehicle, and the vehicle had been damaged. Corporal Al Patterson also arrived on the

scene and began investigating the accident.

Based on the calls they received, the officers asked for and obtained Appellant’s consent

to search the vehicle. Sergeant Hawkins searched the vehicle while Corporal Patterson

continued talking to Appellant. Sergeant Hawkins discovered a bag containing marijuana in the

rear passenger floorboard. The officers did not disclose this to Appellant until they arrested him.

Although Appellant was conscious and standing on his own, both officers noticed that he

was lethargic, sluggish, and seemingly confused. Due to the circumstances and Appellant’s

condition, the officers called for an ambulance to render assistance to him, but he refused

treatment. After talking with Appellant, both officers detected an odor from his breath that,

based on their experience, led them to believe that Appellant was under the influence of PCP.

Appellant also answered questions inconsistently.2 After Appellant realized that the officers had

begun to investigate whether Appellant was driving while intoxicated (DWI), he declined to

answer further questions. Corporal Patterson attempted to perform field sobriety tests, but

Appellant refused.3 Corporal Patterson then requested a blood sample from Appellant, which he

declined to provide.

The officers arrested Appellant, transported him to the police station, and obtained a

warrant authorizing that a blood specimen be taken. Appellant was then transported to the

hospital where a nurse took a blood sample. The specimen tested positive for PCP.

Appellant was charged by information for driving while intoxicated and possession of

marijuana in separate cases. He pleaded “not guilty” to both offenses, and the cases proceeded to

a jury trial. The jury found Appellant guilty of both offenses. After a hearing, the trial court

assessed punishment at ninety days of confinement in the county jail for the possession of a

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For example, Appellant initially admitted that he drove the vehicle, but later stated that he did not.

Appellant also initially failed to confirm his identity.

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Corporal Patterson testified that he observed Appellant exhibit “resting nystagmus” while talking with

him, which he believed to be consistent with PCP use.

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marijuana charge, and 150 days of confinement in the county jail for the DWI charge. This

appeal followed.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant argues in his first issue that he received ineffective assistance of counsel

because his trial counsel failed to contest the method by which Corporal Patterson obtained the

warrant, and failed to object that the warrant was not produced at trial.

In his second issue, Appellant contends that trial counsel was constitutionally ineffective

when he failed to challenge the State’s evidence that he knowingly or intentionally possessed

marijuana. Because Appellant alleges in both issues that he received ineffective assistance of

counsel, we address them together.

Standard of Review and Applicable Law

Claims of ineffective assistance of counsel are evaluated under the two step analysis

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).

The first step requires the appellant to demonstrate that trial counsel’s representation fell below

an objective standard of reasonableness under prevailing professional norms. See Strickland,

466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or

omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell

below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500

(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any

portion of trial counsel’s representation, but will judge the claim based on the totality of the

representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

In any case considering the issue of ineffective assistance of counsel, we begin with the

strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994). We must presume counsel’s actions and decisions were reasonably

professional and were motivated by sound trial strategy. See id. Appellant has the burden of

rebutting this presumption by presenting evidence illustrating why his trial counsel did what he

did. See id. Appellant cannot meet this burden if the record does not affirmatively support the

claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A record that

specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an

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ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.]

1994, pet. ref’d).

Before being condemned as unprofessional and incompetent, defense counsel should be

given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828, 836 (Tex.

Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim

must usually be denied as speculative, and, further, such a claim cannot be built upon

retrospective speculation. Id. at 835.

Moreover, after proving error, the appellant must affirmatively prove prejudice from the

deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.

App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The

appellant must prove that his attorney’s errors, judged by the totality of the representation and

not by isolated instances of error, denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not

enough for the appellant to show that the errors had some conceivable effect on the outcome of

the proceedings. Id. He must show that there is a reasonable probability that, but for his

attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the extent of

his punishment would have been less. See id.; see also Bone, 77 S.W.3d at 837.

Blood Specimen Search Warrant

Appellant argues that the blood specimen test results were the central piece of evidence in

the State’s case, and that it could not obtain a conviction without the results. Appellant’s

argument continues that the warrant was not admitted into evidence, and without it, the probable

cause stated in Corporal Patterson’s affidavit is unknown. Appellant also contends that trial

counsel should have objected when Corporal Patterson testified that he faxed the affidavit and

warrant application to the judge. Appellant argues that this procedure rendered the warrant

ineffective because it failed to satisfy the requirement that the officer provide the magistrate with

a “sworn affidavit” prior to obtaining a warrant. See TEX. CRIM. PROC. CODE ANN. art. 18.01(b)

(West 2015).

The record shows that Corporal Patterson testified that he “fill[ed] out the search warrant,

g[o]t that filled out, [f]ax[ed] it to the Judge. The Judge [f]axes it. Back we go to the hospital.

We draw the blood and then we go to the jail.” The corporal also stated later in his testimony

that in drafting the affidavit, he included “a [w]hole understanding of the circumstances,

explaining to the Judge from the beginning why we were called out, what we saw, all the

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evidence that we have to believe that he is intoxicated. And we put that in the search warrant.”

Corporal Patterson testified that he explained in the affidavit what he had learned during his

investigation, and described the evidence leading him to believe that Appellant was intoxicated.

He also testified that he obtained the warrant. The trial judge was the magistrate who issued the

warrant in this case. There is no requirement per se that the warrant be produced at trial.

Trial counsel did not inquire further into the circumstances surrounding Corporal

Patterson’s acquisition of the blood warrant. The record is silent about trial counsel’s reasons for

not pursuing the matter, but there is a strong presumption that counsel’s decision was based on

sound trial strategy. See Jackson, 877 S.W.2d at 771; Kemp, 892 S.W.2d at 115. Therefore,

Appellant has failed to rebut the presumption.

Moreover, the affidavit satisfies the memorialization requirement when it is faxed to the

judge. Clay v. State, 391 S.W.3d 94, 100 (Tex. Crim. App. 2013) (“Article 18.01(b)’s

requirement that the memorialization take the form of a written affidavit was satisfied in this

case by the fact that [the officer] drafted a written affidavit and faxed it to [the magistrate], so

that the issuing magistrate had a document to be ‘filed’ as required.”). Furthermore, the oath of

the person making the “sworn affidavit” contemplated by Article 18.01(b) need not always be

administered in the corporal presence of the magistrate, so long as sufficient care is taken in the

individual case to preserve the same or an equivalent solemnizing function to that which corporal

presence accomplishes. See id. at 103. In Clay, the evidence showed that the officer and the

magistrate were familiar with each other’s voices, and consequently, the telephonic warrant

application process satisfied Article 18.01(b). See id. The record in the instant cases is silent on

that issue.

But even if trial counsel was ineffective in failing to inquire whether the “sworn

affidavit” requirement was satisfied, a question we do not reach, Appellant failed to show that he

suffered prejudice by his trial counsel’s representation. Curl testified that Appellant suddenly

drove onto his lawn and pointed what he believed to be a handgun at him. Appellant sped away,

hitting a tree in the process. Moments later, the officers found Appellant in his damaged vehicle,

where he had just crashed into a fence. While talking to him, the officers noticed that Appellant

was lethargic and seemed confused. They also smelled the odor of PCP, which they recognized

from their experience. Corporal Patterson also observed “resting nystagmus” while talking to

Appellant, which he believed to be indicative of PCP use. Given this information, the officers

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had probable cause to believe that Appellant was operating a motor vehicle while not having the

normal use of his physical and mental faculties. Additionally, Curl testified that Appellant told

him two weeks after the incident that he was sorry for his behavior and admitted that he was

under the influence of PCP at the time. Curl also testified that Appellant was known to consume

PCP.

Even without the blood warrant test results, and assuming counsel’s representation was

constitutionally defective in this regard, we cannot conclude that there is a reasonable probability

that, but for his attorney’s errors, the jury would have had a reasonable doubt about his guilt. See

Bone, 77 S.W.3d at 837.

Possession of Marijuana

Appellant contends further that trial counsel should have objected to and contested the

State’s theory that he knowingly or intentionally possessed marijuana. Specifically, Appellant

contends that his trial counsel should have objected to the prosecutor’s closing argument that

Appellant consciously threw the marijuana in the backseat to avoid its detection because it is

inconsistent with the evidence. This is because Appellant claims that the video of the arrest

shows he was disoriented, lethargic, and unresponsive when police made contact with him,

implying that he could not have intentionally or knowingly possessed the marijuana. In essence,

Appellant argues that the evidence is inconsistent with the State’s theory.

The record does not demonstrate the reasoning behind trial counsel’s decision to refrain

from objecting to this argument, and we presume that this decision was based on reasonable trial

strategy. See Jackson, 877 S.W.2d at 771; Kemp, 892 S.W.2d at 115. Corporal Patterson

obtained Appellant’s consent to search the vehicle. While he continued to interact with

Appellant, Sergeant Hawkins conducted the search and discovered marijuana in plain view on

the back seat floorboard. The officers testified that marijuana cigarettes are often dipped in PCP

to create a combined drug referred to as “wet.” Corporal Patterson asked, prior to the marijuana

discovery, whether Appellant had been smoking “wet” based on his behavior and the odor

emanating from his breath, which Appellant denied. The corporal opined that he believed

someone in Appellant’s circumstances “possessed” the marijuana and that someone in his

position could have thrown the marijuana in the rear passenger seat to conceal it. The

prosecutor’s argument can be classified as a reasonable summary and deduction from the

evidence, neither of which are objectionable. See Brown v. State, 270 S.W.3d 564, 570 (Tex.

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Crim. App. 2008) (describing permissible grounds for jury argument, including a summary of the

evidence and reasonable deductions from the evidence).

Appellant also seems to argue that trial counsel should have objected when Corporal

Patterson opined that someone in Appellant’s situation had knowingly possessed the marijuana

and that it was in his care, custody, and control. Possession means actual care, custody, control

or management. TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West Supp. 2014). To

prove that Appellant possessed the marijuana, the State was required to show that he exercised

actual care, custody, control, or management over it, he was conscious of his connection to it,

and he knew what it was. See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011);

Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); see also TEX. PENAL CODE ANN.

§ 6.03(a), (b) (West 2011) (defining intentionally and knowingly).

There are several factors by which a defendant may, under the unique circumstances of

each case, be sufficiently linked to the contraband, including (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

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

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

were present; (11) whether the defendant 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 defendant was found with a large amount of cash; and (14) whether the conduct of

the defendant indicated a consciousness of guilt. See Evans, 202 S.W.3d at 162, n.12. It is not

the number of links that is dispositive, but rather the logical force of all the evidence, direct and

circumstantial. Id. at 501. The force of the links need not be such as to exclude every other

alternative hypothesis except the defendant’s guilt. See Brown v. State, 911 S.W.2d 744, 748

(Tex. Crim. App. 1995).

In the instant case, Appellant was the lone occupant of the vehicle when the officers

arrived, and he was present when the search was conducted. Sergeant Hawkins discovered the

marijuana in plain view of the rear right passenger floorboard, an area Appellant could reach

from the driver’s seat. Appellant appeared to be under the influence of drugs when arrested. It

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appears from the record that the vehicle belonged to Appellant. Appellant answered questions

inconsistently and acted in an abnormal manner while talking with the officers. The logical force

of all the evidence leads to the conclusion that the jury could have reasonably deduced from the

evidence that Appellant intentionally or knowingly possessed the marijuana, and any objection

lodged by trial counsel would have been fruitless.

Since the prosecutor’s argument and the conclusions drawn from the evidence that he

possessed the marijuana were not objectionable, Appellant has not shown that counsel’s

representation was constitutionally deficient. In any event, the record does not demonstrate the

reasoning behind trial counsel’s actions.

Appellant’s first and second issues are overruled.

DISPOSITION

Having overruled Appellant’s first and second issues, we affirm the judgment of the trial

court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 12, 2015.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 12, 2015

NO. 12-15-00040-CR

MARCUS DONEL POLLEY,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the County Court at Law

of Nacogdoches County, Texas (Tr.Ct.No. CF1400013)

THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that this decision be certified to the court

below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 12, 2015

NO. 12-15-00041-CR

MARCUS DONEL POLLEY,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the County Court at Law

of Nacogdoches County, Texas (Tr.Ct.No. CF1400014)

THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that this decision be certified to the court

below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.