Opinion issued October 29, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00717-CR NO. 01-12-00718-CR ——————————— DONTAVIAN DESHUN WOODS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause Nos. 1319320 & 1319321
MEMORANDUM OPINION
Appellant Dontavian Deshun Woods was charged with possession of a
controlled substance, cocaine, weighing more than four and less than 200 grams in
trial court cause number 1319320. The indictment alleged that Woods used and
exhibited a deadly weapon during the commission of that offense. Woods was also charged with the felony offense of possession of a firearm by a felon in trial court
cause number 1319321. These cases were tried together, and a jury found Woods
guilty of both offenses. Woods was sentenced to 35 years’ imprisonment for
possession of cocaine and 20 years’ imprisonment for possession of a firearm by a
felon. Woods appeals both judgments, arguing that the evidence is insufficient to
support his convictions, that the deadly weapon finding should be stricken because
he was not arraigned on this finding, and that his counsel was ineffective. 1 We
affirm.
Background
On September 2, 2011, Special Agent J. Marquez with the Bureau of
Alcohol, Tobacco and Firearms and other law enforcement officers set up
surveillance on Apartment 1 at 1925 Ruth Street in Houston to observe a
confidential informant’s controlled buy of crack cocaine from Woods. Special
Agent Marquez observed the confidential informant arrive at the apartment, meet
with Woods, go inside, and return with crack cocaine.
1 Appellate cause number 01-12-00717-CR is the appeal from the conviction for possession of cocaine, and appellate cause number 01-12-00718-CR is the appeal from the conviction for possession of a firearm. The cases were tried together and the reporter’s record is identical in both appeals. Although Woods has filed separate briefs in each appeal, they contain some identical points of error. Accordingly, we address all of Woods’s points of error in both cases in this single opinion. 2 Based on the controlled buy, officers obtained a search warrant for the
apartment. SWAT (Special Weapons and Tactics) Officer P. Straker, along with
other members of SWAT and the Houston Police Department, executed the
warrant. After the group gained access to the apartment through a bedroom,
Officer Straker observed Woods leaving through the apartment’s front door.
Officer Straker ordered Woods on the ground, and he complied. As another agent
detained Woods, Officer Straker and others entered the apartment through the front
door, which was still open. There they observed drugs, several firearms, and drug
paraphernalia in plain view. The officers did not find anyone else inside.
Officers searched the apartment and found: (1) cocaine, cocaine residue, and
liquid codeine on a table in the living room; (2) drug paraphernalia, including
baggies, a digital scale, and beakers used to cook crack cocaine, in the kitchen and
living room; and (3) a piece of crack cocaine in a baggie in the back bedroom.
Additionally, officers found the following weapons in various places throughout
the apartment: (1) a Mossberg 12 gauge shotgun found on the living room floor;
(2) a Smith and Wesson revolver in a kitchen drawer; (3) a Marlin .30-30 caliber
rifle underneath the love seat in the living room; (4) an Intratech 9 mm pistol
underneath the bed in the back bedroom; and (5) a Glock .40 caliber underneath
the bed in the back bedroom. The officers also found a bullet-proof vest on the bed
in the back bedroom.
3 On a table in the living room, officers found a wallet containing Woods’s
driver’s license. His driver’s license identified his address as 2212 Barbee Street,
Apartment 1 in Houston. The utilities and lease for Apartment 1 at 1925 Ruth
Street were not held in Woods’s name, and no fingerprints were found on the
firearms discovered in the apartment.
At trial, Special Agent Marquez testified at length about the controlled buy
that gave rise to the search warrant. She also testified that, based on her
experience, she believed Woods was using the apartment as his place of business—
to sell drugs—and that he lived elsewhere.
Sufficiency of the Evidence: Possession of Cocaine and Firearms
Woods argues that the evidence is insufficient to support his convictions for
possession of a controlled substance and possession of a firearm by a felon,
because no evidence demonstrates that he possessed either the drugs or the guns
found in the apartment.
A. Standard of Review
An appellate court reviews legal and factual sufficiency challenges using the
same standard of review. See Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim.
App. 2011). “Under this standard, evidence is insufficient to support a conviction
if considering all record evidence in the light most favorable to the verdict, a
factfinder could not have rationally found that each essential element of the
4 charged offense was proven beyond a reasonable doubt.” Gonzalez v. State, 337
S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). Evidence is
insufficient under this standard in four circumstances: (1) the record contains no
evidence probative of an element of the offense; (2) the record contains a mere
“modicum” of evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the acts alleged do not
constitute the criminal offense charged. Gonzalez, 337 S.W.3d at 479. The
sufficiency of the evidence is measured by the elements of the offense as defined
in a hypothetically correct jury charge, which is one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If an appellate court
finds the evidence insufficient under this standard, it must reverse the judgment
and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479 (citing Tibbs v.
Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218 (1982)).
An appellate court determines whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d
5 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17
(Tex. Crim. App. 2007)). When the record supports conflicting inferences, an
appellate court presumes that the factfinder resolved the conflicts in favor of the
verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793). “An appellate court likewise defers to the factfinder’s evaluation of the
credibility of the evidence and the weight to give the evidence.” Gonzalez, 337
S.W.3d at 479. A court treats direct and circumstantial evidence equally:
circumstantial evidence can be as probative as direct evidence, and circumstantial
evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778
(quoting Hooper, 214 S.W.3d at 13).
B. Applicable Law
A person commits the offense of possession of cocaine in an amount greater
than four but less than two hundred grams if the person, (1) knowingly or
intentionally, (2) possessed, (3) cocaine, (4) in an amount of greater than four but
less than 200 grams. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West
2010).
A person commits the offense of unauthorized possession of a firearm by a
felon if the person has previously been convicted of a felony offense and possesses
a firearm after the conviction and before the fifth anniversary of the person’s
release from confinement, community supervision, parole, or mandatory
6 supervision following the prior felony conviction, whichever date is later. See
TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011); James v. State, 264 S.W.3d
215, 218 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).
In order to prove unlawful possession, of either cocaine or a firearm, the
State must present evidence that: (1) the accused exercised control, management,
or care over the contraband; and (2) the accused knew the matter possessed was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see
also Corpus v. State, 30 S.W.3d 35, 37–38 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d) (applying same sufficiency-of-the-evidence standard in cases involving
possession of firearm by a felon as is applied in cases of possession of controlled
substance and requiring State “to prove that appellant knew of the weapon’s
existence and that he exercised actual care, custody, control, or management over
it.”).
Possession need not be exclusive. Wiley v. State, 388 S.W.3d 807, 813 (Tex.
App.—Houston [1st Dist.] 2012, pet. ref’d) (citing McGoldrick v. State, 682
S.W.2d 573, 578 (Tex. Crim. App. 1985)). When the accused is not in exclusive
possession of the place where the contraband is found, then additional, independent
facts and circumstances must affirmatively link the defendant to the contraband in
such a way that it can reasonably be concluded that the defendant had knowledge
of the contraband and exercised control over it. Kibble v. State, 340 S.W.3d 14, 18
7 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Roberts v. State, 321 S.W.3d
545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The evidence,
whether direct or circumstantial, must establish, to the requisite level of
confidence, that the accused’s connection with the contraband was more than just
fortuitous. Poindexter, 153 S.W.3d at 405–06 (quoting Brown v. State, 911
S.W.2d 744, 747 (Tex. Crim. App. 1995)). “The rule simply [states] the common-
sense notion that a person—such as a father, son, spouse, roommate, or friend—
may jointly possess property like a house but not necessarily jointly possess the
contraband found in that house.” Id. at 406. The accused’s presence at the scene
where contraband is found is insufficient, by itself, to establish possession.
Roberts, 321 S.W.3d at 549 (citing Evans v. State, 202 S.W.3d 158, 162 (Tex.
Crim. App. 2006)). However, presence or proximity when combined with other
direct or circumstantial evidence may be sufficient to establish the elements of
possession beyond a reasonable doubt. Id.
Links that may establish knowing possession 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 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
8 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 substance was found; (12) whether the place
where the substance 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. See Evans, 202 S.W.3d at 162, n.12; James,
264 S.W.3d at 219. The “number of . . . links proven is not as important as the
logical force that they collectively create.” Wiley, 388 S.W.3d at 814 (quoting
Hubert v. State, 312 S.W.3d 687, 691 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d)); see James, 264 S.W.3d at 219. “The absence of various affirmative links
does not constitute evidence of innocence to be weighed against the affirmative
links present.” Wiley, 388 S.W.3d at 814 (quoting James, 264 S.W.3d at 219).
C. Analysis
Here, the evidence sufficiently links Woods to the cocaine and the firearms
and therefore permits a rational jury to find beyond a reasonable doubt that he
possessed both. Woods was the only person present at the scene when the officers
executed the search warrant, and he attempted to flee immediately after police
forcibly entered through a bedroom. See Evans, 202 S.W.3d at 162, n.12 (presence
when search conducted and attempt to flee are affirmative links); Hargrove v.
9 State, 211 S.W.3d 379, 387 (Tex. App.—San Antonio 2006, pet. ref’d) (evidence
that defendant exited the back door of house immediately after police knocked on
front door and announced their presence was affirmative link). Woods’s wallet,
with his driver’s license inside, was on a table in the living room. Although the
driver’s license identified a different address as his residence, Special Agent
Marquez testified that in her experience drug dealers sell drugs from a place other
than where they live, and that she believed that Woods was using the apartment as
his office or place of business for the purpose of selling drugs. Further, she
testified that the confidential informant purchased crack cocaine from Woods at the
apartment days before police executed the warrant. See Evans, 202 S.W.3d at 162,
n.12 (evidence that defendant had right to possess place where contraband was
found is affirmative link).
Additionally, many of the firearms, drugs and drug paraphernalia discovered
inside the apartment were in plain view and accessible to anyone inside the
apartment. See id. at 162, n.12 (whether contraband was in plain view, proximity
and accessibility of contraband to defendant, and presence of contraband are
affirmative links); Hargrove, 211 S.W.3d at 386 (presence of drug paraphernalia
and weapons supported conclusion that defendant knew he possessed drugs and
weapons); Gregory v. State, 159 S.W.3d 254, 260 (Tex. App.—Beaumont 2005,
pet. ref’d) (considering as affirmative links large quantity of contraband in plain
10 view in a home that was easily accessible to defendant). In sum, the evidence thus
demonstrates that Woods was present, had access to the apartment, which
contained drugs and firearms in various places, many in plain view, and that he had
a consciousness of guilt and attempted to flee when the officers arrived.
Woods contends that the evidence of possession is nevertheless insufficient
because his wife testified that Woods lived in another location, his driver’s license
identified a different address, the utilities and lease agreement at the apartment
were not in his name, the firearms found in the apartment were not registered to
him, a prescription pill bottle found in the apartment was not in his name, and his
fingerprints were not found in the apartment. While this evidence supports an
inference that Woods lived elsewhere, the fact that he may not have lived in the
place he sold drugs does not undermine the jury’s finding that he exercised control,
management, and care over the drugs and firearms found in the apartment.
Viewing the evidence in a light most favorable to the verdict, we hold that a
rational jury could have concluded beyond a reasonable doubt that Woods
exercised actual care, custody, control, or management over the cocaine and
firearms found at the apartment. See Hargrove, 211 S.W.3d at 386–87 (holding
evidence was sufficient to support finding that appellant possessed marijuana and
body armor where evidence showed appellant was present and alone in the house
when the contraband was seized; marijuana and body armor were easily accessible
11 to appellant; drug paraphernalia and weapons were found in plain view; and
appellant attempted to flee when police arrived); Evans, 202 S.W.3d at 166
(holding evidence was sufficient to support jury’s finding that appellant knowingly
possessed cocaine where evidence showed appellant was present and alone in
house where drugs were found; drugs were in plain view on table in front of him
when police entered; he immediately knew why police were at house; and he
received mail at that house).
Accordingly, we overrule Woods’s points of error challenging the
sufficiency of the evidence to support his convictions for possession of a controlled
substance and possession of a firearm by a felon.
Deadly Weapon Finding
Woods argues that the evidence is insufficient to support the jury’s finding
that he used or exhibited a deadly weapon during the commission of the offense of
possession of a controlled substance. Specifically, he contends that the evidence
was insufficient because he was outside the apartment when he was arrested, the
evidence did not establish that he was an occupant of the apartment, police officers
did not find drugs or a weapon on his person when he was arrested, his fingerprints
were not found on the firearms recovered from the apartment, and the owner of the
firearms was never identified.
12 A deadly weapon finding can be made if a deadly weapon “was used or
exhibited during the commission of a felony offense.” TEX. CODE CRIM. PROC.
ANN. art. 42.12 3g(a)(2). Therefore, “we must determine whether a rational trier of
fact could have found beyond a reasonable doubt that [a]ppellant used the guns to
facilitate possession . . . of the narcotics.” Coleman v. State, 145 S.W.3d 649, 652
(Tex. Crim. App. 2004). In the context of a deadly weapon finding, the term “use”
means any employment of a deadly weapon, even simple possession, if that
possession facilitates the associated felony. Id. The term “exhibit” requires a
weapon to be consciously shown, displayed, or presented to be viewed. Id. When
determining whether sufficient evidence supports a deadly weapon finding, courts
may consider several factors, including: (1) the type of gun involved; (2) whether
or not the gun was loaded; (3) whether or not the gun was stolen; (4) the proximity
of the gun to the drugs, drug paraphernalia, or drug manufacturing materials;
(5) the accessibility of the gun to whomever controlled the premises; (6) the
quantity of drugs involved; and (7) any evidence that might demonstrate an
alternative purpose for the presence of the guns. Id. at 658–60 (Cochran, J.,
concurring).
Here, officers executing the search warrant found several firearms
throughout the apartment, all of which were loaded. Specifically, officers
observed (1) a Mossberg 12 gauge shotgun in plain view in the living room; (2) a
13 Smith and Wesson revolver in a drawer in the kitchen; (3) a Marlin .30-30 caliber
rifle underneath the love seat in the living room; (4) an Intratech 9 mm pistol under
the bed in the back bedroom; and (5) a Glock .40 caliber pistol under the bed in the
back bedroom. One of the firearms in the living room was in plain view and the
other was underneath a love seat, both in close proximity to the drugs and drug
paraphernalia found in the living room. The firearm found in the kitchen drawer
was in close proximity to the drug paraphernalia found in the kitchen. And the two
guns in the back bedroom, while found under a bed, were nevertheless accessible
to the apartment’s occupants and in the same room as the baggie of crack. Thus,
viewing the evidence in a light most favorable to the jury’s finding, we conclude
that a rational trier of fact could have found beyond a reasonable doubt that Woods
used the guns to facilitate possession of the narcotics. See Castillo v. State, __
S.W.3d __, 2012 WL 2924469, at *2–3 (Tex. App.—Houston [1st Dist.] July 12,
2012, no pet.) (holding evidence sufficient to support deadly weapon finding where
police found assault rifle and shotgun, both of which were loaded, in immediate
proximity to drugs and drug paraphernalia, and guns were found in plain view in
room where defendant was sleeping); Coleman, 145 S.W.3d at 654–55 (holding
evidence sufficient to support deadly weapon finding, despite the fact that
defendant was handcuffed outside house, where drugs were found throughout
house, and two were found inside a room with a safe containing two large bottles
14 of PCP and large amount of cash); Gale v. State, 998 S.W.2d 221, 222–23, 226
(Tex. Crim. App. 1999) (upholding deadly weapon finding where three rifles and a
handgun, which were unloaded but could have been loaded within “seconds,”
“were virtually inches away from the contraband and its alleged proceeds”).
We overrule Woods’s point of error urging that the evidence is insufficient
to support the deadly weapon finding.
Arraignment on Deadly Weapon Paragraph
Woods contends that the “deadly weapon finding should be stricken from
the judgment because the State did not arraign [him] on the deadly weapon
paragraph.”
Although a defendant is entitled to notice that the State will seek an
affirmative finding that a deadly weapon was used during the commission of the
charged crime, this notice need not be contained in the indictment as long as it is in
writing. Brooks v. State, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993). The
defendant is “simply ‘entitled to notice in some form that the use of a deadly
weapon will be a fact issue at the time of prosecution.’” Id. (quoting Ex parte
Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989)); Grettenberg v. State, 790
S.W.2d 613, 614–15 (Tex. Crim. App. 1990); see also Patterson v. State, 138
S.W.3d 643, 647 (Tex. App.—Dallas 2004, no pet.) (“[A]n accused is ‘entitled to
notice in some form that the use of a deadly weapon will be a fact issue at the time
15 of prosecution.’ The notice need not be included in the indictment; however, it
must be in writing. Failure to give any notice is fundamental error and requires
that the deadly weapon finding be excluded from the judgment.”) (citations
omitted).
Here, the indictment charging Woods with possession of cocaine contained
an allegation that at the time Woods committed the offense, “[h]e used and
exhibited a deadly weapon, namely, a FIREARM, during the commission of said
offense and during the immediate flight from said offense.” During the trial, the
trial court realized that the State had not arraigned Woods on the deadly weapon
allegation in the indictment. The trial court then determined that Woods did not
have to be arraigned on that allegation, and instead the court indicated that a
special issue would be submitted to the jury. The trial court read the charge,
including the deadly weapon special issue, to the jury. The jury returned an
affirmative finding on the deadly weapon special issue, and the trial court entered a
deadly weapon finding in the judgment. Because the deadly weapon allegation
appeared in the indictment, Woods had notice of the State’s intent to seek an
affirmative finding on the use of a deadly weapon and that use of a deadly weapon
would be a fact issue. The State was not also required to arraign Woods on that
special issue. See Grettenberg, 790 S.W.2d at 614–15 (notice was sufficient where
portion of indictment state had abandoned included allegation of use of a deadly
16 weapon); see also Strickland v. State, No. C14-90-00795-CR, 1992 WL 323426, at
*2 (Tex. App.—Houston [14th Dist.] Nov. 5, 1992, no pet.) (not designated for
publication) (rejecting claim that defendant must be arraigned on deadly weapon
issue and stating “[t]here is no authority to support appellant’s contention that he
must be arraigned on the special plea and then be allowed to enter a plea on that
issue”).
Accordingly, we overrule Woods’s challenge to the deadly weapon finding.
Ineffective Assistance of Counsel
Woods argues that his trial counsel was ineffective for failing to object to
hearsay and extraneous offense evidence and for failing to move to suppress the
search warrant.
Both the federal and state constitutions guarantee an accused the right to
have the assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, §
10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2012). The right to
counsel includes the right to reasonably effective assistance of counsel. 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). Both state and
federal claims of ineffective assistance of counsel are evaluated under the two
prong analysis of Strickland. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
17 App. 1999). The first prong requires the appellant to demonstrate that counsel’s
performance was deficient, meaning that counsel made errors so serious that he
was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The second prong requires the
appellant to show that counsel’s deficient performance prejudiced the defense. Id.
This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial. Id. To establish prejudice, the appellant must prove there
is a reasonable probability that but for counsel’s deficient performance, the result
of the proceeding would have been different. Jackson v. State, 973 S.W.2d 954,
956 (Tex. Crim. App. 1998). A reasonable probability is “a probability sufficient
to undermine confidence in the outcome of the proceedings.” Id. Unless an
appellant can prove both prongs, an appellate court must not find counsel’s
representation to be ineffective. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
There is a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance. Thompson, 9 S.W.3d at 813; Jackson
v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). On direct appeal, a
reviewing court will rarely be able to fairly evaluate the merits of an ineffective-
assistance claim because the record on direct appeal is usually undeveloped and
inadequately reflective of the reasons for defense counsel’s actions at trial. Mata v.
State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The lack of a clear record
18 usually will prevent the appellant from meeting the first prong of Strickland, as the
reasonableness of counsel’s choices and actions during trial can be proven
deficient only through facts that do not normally appear in the appellate record. Id.
In order for an appellate court to find on direct appeal that counsel was ineffective,
counsel’s deficiency must be affirmatively demonstrated in the trial record. Lopez
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). When the record is silent
as to counsel’s reasons for his conduct, finding counsel ineffective would call for
speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d). An appellate court will not speculate
about the reasons underlying defense counsel’s decisions to find counsel
ineffective. Id.; Jackson, 877 S.W.2d at 771. If appellant does not file a motion
for new trial or request a hearing, or if counsel does not appear at the hearing, an
affidavit from trial counsel becomes almost vital to the success of an ineffective
assistance claim on direct appeal. Stults, 23 S.W.3d at 208–09.
Moreover, “[i]t is not sufficient that the appellant show, with the benefit of
hindsight, that his counsel’s actions or omissions during trial were merely of
questionable competence.” Mata, 226 S.W.3d at 430. Rather, in order to prevail
on an ineffective-assistance claim on direct appeal, “the record must demonstrate
that counsel’s performance fell below an objective standard of reasonableness as a
matter of law, and that no reasonable trial strategy could justify trial counsel’s acts
19 or omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at
143; see also Mata, 226 S.W.3d at 428–29 (recognizing exception to presumption
of reasonable professional judgment when complained-of conduct by trial counsel
is of type which no reasonably competent defense attorney would have engaged in
for any reason).
B. Failure to Object to Evidence
Woods claims his trial counsel was ineffective for failing to object to
hearsay and extraneous offense testimony offered by Special Agent Marquez
describing the confidential informant’s controlled buy of cocaine from Woods,
which formed the basis for the search and arrest warrant. Woods also contends his
trial counsel was ineffective for failing to object to Officer Straker’s testimony that
HPD and ATF agents were investigating known gang members in the apartment
complex.
Woods did not move for a new trial. The record is silent as to his trial
counsel’s strategy, and there is no explanation from counsel revealing why he
failed to object to the complained-of testimony. When the record is silent as to
trial counsel’s strategy, an appellate court may not speculate about why counsel
acted as he did. Stults, 23 S.W.3d at 208; Jackson, 877 S.W.2d at 771. Even if the
challenged evidence were inadmissible, trial counsel’s failure to object may have
been part of a reasonable trial strategy. See Heiman v. State, 923 S.W.2d 622,
20 626–27 (Tex. App.—Houston [1st Dist.] 1995, pet ref’d) (holding that failure to
object to inadmissible extraneous offense testimony, in the absence of record
showing counsel’s reasons for not doing so, did not rise to level of ineffective
assistance because failure to object could have been part of counsel’s sound and
plausible trial strategy); Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.—
Houston [1st Dist.] 1994, pet ref’d) (concluding that failure to object to hearsay
testimony could have been part of trial counsel’s plausible trial strategy).
We conclude that Woods has neither shown that his trial counsel’s actions at
trial were “so outrageous that no reasonable competent trial attorney would have
done likewise,” nor “rebutted the presumption that his trial counsel’s actions were
part of some sound trial strategy.” Mata, 226 S.W.3d at 433; see also Lopez, 343
S.W.3d at 143–44 (concluding counsel was not ineffective for failing to object to
hearsay because record was silent regarding counsel’s strategy). Therefore, we
hold that Woods has failed to satisfy the first prong of Strickland with regard to
trial counsel’s failure to object to the above-described evidence.
C. Failure to File Motion to Suppress Search Warrant
Woods also argues that his trial counsel was ineffective for failing to move
to suppress the September 3, 2011 search warrant, which he contends had expired
before it was executed on September 7, 2011.
21 Article 18.06(a) of the Code of Criminal Procedure provides that a search
warrant “must be executed within three days from the time of its issuance.” TEX.
CODE CRIM. PROC. ANN. art. 18.06(a) (West 2005). The method of computing the
time for execution of a search warrant is determined by article 18.07, which
provides that the time allowed for execution of a search warrant, “exclusive of the
day of its issuance and of the day of its execution, is three whole days . . . .” TEX.
CODE CRIM. PROC. ANN. art. 18.07(a)(2) (West Supp. 2012); see also Williams v.
State, 965 S.W.2d 506, 507 (Tex. Crim. App. 1998) (holding that a warrant which
directs it to be returned within three days, exclusive of the day of its execution,
may be executed at any time on the fourth day after the date of issuance and,
therefore, concluding that warrant issued on November 5th and executed on
November 9th was valid). A search warrant that is not executed within the time
period provided by articles 18.06(a) and 18.07 becomes “functus officio.” Green
v. State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990). Such a warrant has no
further official force or effect, and any search whose legality depends on the
warrant is unauthorized. Id.
The Court of Criminal Appeals has held that a search warrant issued on
March 20th, and executed on March 25th, the fifth day after issuance, was stale and
resulted in an invalid search. Green, 799 S.W.2d at 757, 761 (Article 18.07
requires a warrant to be “executed within a time frame of three days, exclusive of
22 the day of issuance and day of execution”). This Court has held that a search
warrant must be executed by midnight of the fourth day after the day of its
issuance and, therefore, a warrant that was issued on October 1st and executed on
October 5th was valid. See Gonzalez v. State, 768 S.W.2d 436, 438 (Tex. App.—
Houston [1st Dist.] 1989, no pet.).
Here, it is undisputed that the warrant was issued on September 3, 2011, and
executed on September 7, 2011. The State had until midnight on the fourth day
after the search warrant was issued, September 7, 2011, to execute it. See TEX.
CODE CRIM. PROC. ANN. art. 18.07(a)(2); Gonzalez, 768 S.W.2d at 438. Therefore,
the warrant was timely executed and trial counsel could not have been ineffective
for failing to move to suppress the warrant for untimely execution. See Green, 799
S.W.2d at 757; Gonzalez, 768 S.W.2d at 438; see also Williams, 965 S.W.2d at
507 (holding that warrant may be executed at any time on the fourth day after the
date of issuance and, therefore, warrant issued on November 5th and executed on
November 9th was valid); State v. Rico, 241 S.W.3d 648, 650 (Tex. App.—
Amarillo 2007, no pet.) (holding that State had until midnight on fourth day after
search warrant was issued in which to execute it and, therefore, warrant issued on
August 19th, and executed on August 24th, was stale and “functus officio”).
We overrule Woods’s points of error urging that his trial counsel was
ineffective for failing to move to suppress the search warrant.
23 Conclusion
We affirm the judgments of the trial court.
Rebeca Huddle Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).