John Anderson White, III v. The State of Texas--Appeal from 85th District Court of Brazos County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 1993 » John Anderson White, III v. The State of Texas--Appeal from 85th District Court of Brazos County

State: Texas

Court: Texas Northern District Court

Docket No: 10-92-00273-CR

Case Date: 12/29/1993

Plaintiff: John Anderson White, III

Defendant: The State of Texas--Appeal from 85th District Court of Brazos County

Preview:John Anderson White, III v. The State of Texas--Appeal
from 85th District Court of Brazos County
White III-JA v. State /**/
IN THE
TENTH COURT OF APPEALS
No. 10-92-273-CR
JOHN ANDERSON WHITE, III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court # 21,025-85
O P I N I O N
A jury found White guilty of possession of a controlled substance with intent to deliver and assessed fifty years in the
Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. See Tex. Health & Safety Code
Ann. 481.112(a) (Vernon 1992). In two points of error he claims that the evidence is insufficient to support his
conviction and that his trial counsel was ineffective. We affirm his conviction.
To establish possession with the intent to deliver, the State must show that White (1) exercised care, control and
management over a controlled substance, (2) that he knew that the matter possessed was contraband, and (3) that
White intended to transfer the controlled substance. See Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988).
In resolving the sufficiency-of-the-evidence issue, we view all the evidence in the light most favorable to the verdict
and determine whether any rational trier of fact could have found these essential elements beyond a reasonable doubt.
See Geesa v. State, 820 S.W.2d 154, 156-57 (Tex. Crim. App. 1991). This standard applies whether the evidence is
direct or circumstantial. Id at 158. The jury is the exclusive judge of the credibility of the witnesses and is free to
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accept or reject any part of a witness' testimony. See Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989).
The State's evidence opened with an extensive discussion of the techniques and procedures of the street-level drug
salesman by Bryan Police Officer Dennis Thane. He testified that the police interdiction efforts begin with a decision
about where the officers suspect drug sales may be taking place. The officers then observe the persons present in that
location, attempting to detect certain "factors" in their behavior which indicate that drug sales are taking place. Among
those factors, according to Officer Thane, is the fact that a person who has been loitering in an area approaches cars
which stop along the street momentarily with their engines running, that the person approaches several cars over time,
that he stays at the cars for a short period of time, "probably three or four seconds," that while at the car the suspect
shows the occupants of the car his "cupped" hand and that after the exchange, the vehicle leaves the area and the
suspect returns to the roadside where he waits for another car to stop. Officer Thane also testified that the street dealer
typically keeps his merchandise in either a match box or in a film canister.
The State's factual evidence showed that White was observed by Officer Thane and two other members of the Bryan
Police Department's Street Crime Apprehension Team (SCAT) outside a Bryan nightclub. Each of the officers testified
that they saw White approach a car that had stopped in the street, insert a "cupped" hand through an open window for
a few seconds and then return to the parking lot outside the nightclub. After witnessing this behavior, the officers
concluded that White was in the process of selling drugs and returned to the police department building to obtain a
different car to continue the surveillance. When they returned to the nightclub, the officers observed White get into a
pickup truck stopped in the street for three to five seconds and again return to the parking lot. The officers drove their
car to within twenty-five feet of White and got out of the car to question him. When White saw the police getting out
of their car, he threw a film canister on the ground which was found to contain eight small rocks and four large rocks
of crack cocaine. White had $578 in small denomination bills in his possession.
White called three defense witnesses to testify to the events of the night of his arrest. All three witnesses testified
concerning White's encounter with the car in the street. Each stated that the purpose of his dealing with the occupants
of the car was to purchase beer for a person in the car. Two of the witnesses also testified concerning the source of the
film canister. Phyllis Williams stated that she was in a position to see if White had thrown the canister and that he had
not. John Workman testified that he saw someone other than White throw the canister on the ground. He did not state
who this third party was.
The testimony of the three officers concerning White's behavior prior to his arrest follows almost exactly Officer
Thane's description of the procedures of the typical street dealer. Because the jury was entitled to credit Officer
Thane's theoretical testimony and the three officer's factual testimony over White's defensive evidence, the evidence is
sufficient to sustain White's conviction for possession of a controlled substance with intent to deliver. See id. Point one
is overruled.
In point two, White alleges that his counsel's performance at the trial was deficient. He claims that his counsel's
ineffectiveness was manifested in five ways. Four of his complaints relate to the proceedings during the guilt-
innocence phase of the trial; White alleges that his trial attorney was deficient for (1) failing to request a jury
instruction requiring the jury to determine the legality of the seizure of the film canister by the police, See Tex. Code
Crim. Proc. Ann. art. 38.23 (Vernon Supp. 1993); (2) failing to inform him of a plea offer by the State; (3) failing to
object to testimony referring to a elementary school located near the scene of the offense; and (4) failing to ask the
defense witnesses who owned or who actually dropped the film canister. White also complains that his attorney failed
to object to the inclusion of an order revoking his probation on a prior conviction, which stated that the grounds for the
revocation was another offense, in the pen packet submitted to the jury during the punishment phase of the trial.
To prevail on the first part of this point, White must meet the two-pronged test used to analyze ineffective assistance
of counsel claims. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Stafford v.
State, 813 S.W.2d 503, 505-06 (Tex. Crim. App. 1991). First, he must show that his trial counsel's performance was so
deficient, because he made errors of such a serious nature, that he was not functioning as the "counsel" guaranteed by
the Sixth Amendment. Id. Second, he must demonstrate that the deficient performance so prejudiced his defense that
he was deprived of a fair trial, i.e., that there is a reasonable probability that, but for his counsel's unprofessional errors,
the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to
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undermine confidence in the outcome. Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App. San Antonio 1991, pet. ref'd).
Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. Id. The fact that
another attorney might have pursued a different course of action or tried the case differently will not support a finding
of ineffective assistance of counsel. Id.
Among White's claims of ineffective assistance during the guilt-innocence proceedings, his complaint regarding the
failure to request an article 38.23 charge is legally unfounded, and his complaint regarding the plea offer is factually
unfounded. Because the film canister was abandoned prior to being seized by the police, there was no issue of the
legality of the police action for the jury to consider. See Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App.
1986). At the hearing on White's motion for a new trial, his former attorney testified that he did in fact tell White of
the plea offer from the State and that White rejected the offer because it did not include probation. Because the trial
court overruled White's motion for a new trial, the judge necessarily credited the attorney's testimony and disbelieved
White's assertions. See Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim. App. 1990). Thus, his claim relating to the
plea offer is factually lacking merit.
White's complaint regarding the failure to inquire concerning the source or ownership of the canister raises an issue
that is within the realm of strategic trial decisions. White's attorney testified at the motion for new trial hearing that the
decision not to ask who owned the canister was made after pre-trial consultation with White. White testified that his
attorney expected the State to ask the witness who owned the drugs and explained that the prosecuting attorney was
"not as dumb as I thought he was" when the question was not asked. The choice not to ask the question was made after
the attorney and White consulted with each other and with the witnesses, including the putative owner of the drugs.
"Such strategic decisions by counsel are virtually unchallengeable. " Ex parte Felton, 815 S.W.2d 733, 737 n.4 (Tex.
Crim. App. 1991).
White's right to effective counsel is not the right to error-free counsel. See Hernandez v. State, 726 S.W.2d 53, 58
(Tex. Crim. App. 1986). After reviewing the record as a whole, we cannot say that the attorney's conduct was such that
confidence in the outcome of the trial is undermined.
White's complaint regarding his attorney's conduct during the punishment phase of the trial is evaluated by the
"reasonably effective assistance" standard. See Felton, 815 S.W.2d at 735. This standard requires us to determine "first,
whether counsel was reasonably likely to render effective assistance, and second, whether counsel reasonably rendered
effective assistance." See Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992). "Reasonably likely to render"
refers to the competence of the attorney, and "rendered" refers to actual performance at the hearing. See Felton, 815
S.W.2d at 735. The second prong of the guilt-innocence phase test is not utilized when the performance of counsel at
the punishment phase is evaluated. See id. at 736 n.4. Again, however, the right is not a right to error-free counsel, and
the attorney's performance is measured by examining the "totality of the representation." Id. at 735.
The failure of the trial attorney to object to the inclusion of the order in the pen packet was a mistake on his part. See
Cliburn v. State, 661 S.W.2d 731, 732 (Tex. Crim. App. 1984). However, there is no indication in the record of why the
attorney failed to request that the trial court either strike the document or eliminate the offending information.
Reviewing the record as a whole, it is clear that this attorney was, in fact, reasonably likely to render effective
assistance at the punishment phase of the trial. Additionally, given the strategic decisions made by the attorney in
preparing for the punishment hearing, including choices regarding what witnesses to call, we have determined that the
attorney provided constitutionally sufficient assistance of counsel at the punishment phase of the trial. Point two is
overruled.
The judgment is affirmed.
BILL VANCE
Justice
Before Chief Justice Thomas,
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Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed December 29, 1993
Do not publish
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