No. 05-08-00224-CR
Opinion Filed March 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F05-49999-H.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice FITZGERALD.
Gregory N. Dismuke appeals his conviction for possession with intent to deliver four grams or more but less than two hundred grams of cocaine. After finding appellant guilty, the jury assessed his punishment at fifty years' imprisonment and a $7500 fine. Appellant brings two issues on appeal asserting the evidence is legally insufficient to support his conviction and that he lacked effective assistance of counsel at trial. We affirm the trial court's judgment.
BACKGROUND
Before March 1, 2005, the Dallas police department received several complaints about drug trafficking at 2301 Pennsylvania Avenue in Dallas. Officer Jaime Castro conducted surveillance on the house from the roof of a twelve-story building across the street. Castro observed numerous people approach the house, walk through a wooden fence surrounding the backyard, and go to the back door of the house, stand there for ten to fifteen seconds, and then leave. On several occasions, Castro had seen a particular car parked in front of the house for extended periods of time; other cars that came to the house were there for only short periods. There was a path worn into the ground leading from the backyard gate to the back door. On March 1, 2005, Castro was conducting surveillance on the house when he saw the car that was often parked in front of the house being driven away. Officer Patrick Starr stopped the car about half a block from the house because the driver was not wearing a seat belt. As he approached the car, Starr saw the driver stuffing something into his pockets. Starr searched the driver, found marijuana, and arrested him. The driver, Daiveon Walker, said he lived at 2301 Pennsylvania. Starr contacted Castro and asked Castro to go to the house and inquire if Walker lived there. Castro and four other officers approached the house. Officer Leel stood by the front door while Castro and three other officers went to the back door. The back door had a metal cage around it with hole large enough to pass money and drugs through. On the front of the house, there was the main front door and a second door at the left side of the front of the house. Castro knocked on the back door with his baton, announced he was with the police, and said "you need to come to the door." The back door was not opened, but the secondary front door opened and appellant stepped out. Leel, who was standing in front of the house, shouted at appellant to stop. When appellant saw Leel, he threw down what he was holding-three rocks of crack cocaine and his identification card-and jumped back into the house. Leel chased him into the house, and appellant surrendered. The officers obtained a warrant to search the house. The search of the house revealed about fifty grams of cocaine, three pounds of marijuana, about $5800 in cash, two loaded pistols and a shotgun, scales, packaging materials for crack cocaine and marijuana, and all the equipment needed to make crack cocaine from powdered cocaine. Except for a couple of mattresses and a chair, there was no furniture in the house. The equipment used to make crack cocaine was coated with cocaine residue. The car Walker was driving when he was stopped by the police was registered in appellant's name. The set of keys used by Walker containing appellant's car key included a key to the house. Cherrie Vaughan testified that Walker lived in the house and did not own a car. Walker would borrow other people's cars or pay people to drive him. LEGAL SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant asserts the evidence is legally insufficient to support his conviction. In evaluating the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Bigon v. State, 252 S.W.3d 360, 366 (Tex.Crim.App. 2008). The jury is the exclusive judge of the evidence's weight and the testimony's credibility. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). To prove unlawful possession of a controlled substance, the State must prove: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. This evidence, whether direct or circumstantial, must establish to the requisite level of confidence that the accused's connection with the drug was more than just fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005). In this case, appellant was not in exclusive possession of the place where the controlled substances were found. Accordingly, we cannot conclude appellant had knowledge of and control over the contraband unless other direct or circumstantial evidence establishes his possession of the drug beyond a reasonable doubt. The number of factors linking appellant to the contraband is less important than the logical force with which all the evidence, both direct and circumstantial, connects appellant to the contraband. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006). Possible links recognized by Texas courts include: (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 narcotic; (4) whether the defendant was under the influence of narcotics 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. Id. at 162 n. 12. In this case, (1) appellant was the only person in the house when the police arrived; (2) the cocaine was in plain view in the kitchen and the bathroom as well as on the floor; (3) appellant had access to the cocaine before the police entered; (4) no evidence shows he was under the influence of drugs; (5) appellant threw down three rocks of crack cocaine when he saw the police; (6) appellant did not make any incriminating statements when arrested; (7) appellant tried to leave through the front of the house when he thought the police were at the rear of the house and he tried to run away from the officer at the front of the house; (8) appellant dropped the cocaine when he saw the officer; (9) there was no evidence of an odor of contraband; (10) the officers testified there was marijuana in the house as well as all the equipment necessary to manufacture crack cocaine; (11) no evidence showed appellant owned the house, but appellant's car was often seen parked at the house for extended periods, and a key to the house was on the set of keys containing appellant's car key; (12) the cocaine was in plain view; (13) over $5800 in cash was found in the house, but none of it was on appellant's person; and (14) appellant's attempt to leave through the front of the house when he thought the police were at the back of the house and his attempted flight from the officer at the front of the house showed a consciousness of guilt. After considering all the evidence, we conclude the evidence connects appellant to the cocaine and that a rational trier of fact could have found appellant guilty beyond a reasonable doubt of possession with intent to deliver four or more but less than two hundred grams of cocaine. We overrule appellant's first issue. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, appellant contends he lacked effective assistance of counsel at trial. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record. Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). The defendant must prove by a preponderance of the evidence that there is, in fact, no plausible professional reason for a specific act or omission by his counsel. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant argues his trial counsel failed to fully investigate the case. Appellant asserts that counsel failed to discover Walker's written statement admitting his guilt and exonerating appellant, and counsel did not use the disciplinary record of one of the officers to show "significant acts of deliberate falsehood" to impeach him. Neither Walker's written statement nor any evidence of the officer's disciplinary history is in the appellate record. Appellant refers to two exhibits attached to his brief, but it is well established that attachments to briefs that are not otherwise part of the appellate record may not be considered by the appellate courts. Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex.Crim.App. 1981); Raspberry v. State, 535 S.W.2d 871, 873 (Tex.Crim.App. 1976); Hartman v. State, 198 S.W.3d 829, 842 (Tex.App.-Corpus Christi 2006, pet. struck). The appellate record consists of the clerk's record and the reporter's record. Tex. R. App. P. 34.1. Neither Walker's written statement nor the officer's disciplinary history appears in either record. Accordingly, they are not part of the appellate record and may not be considered on appeal. Without those documents in the record, appellant's allegations of ineffectiveness have no basis in the record. We conclude appellant has not shown he lacked effective assistance of counsel. We overrule appellant's second issue. We affirm the trial court's judgment.