Farmer, Angela D.

• Court: Court of Appeals of Texas
• Decided: October 5, 2017
• Docket: PD-1095-17
• Status: Published

Opinion

PD-10 94&10 95&10 96-17 PD-1094&1095&1096-17 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/3/2017 12:07 PM Accepted 10/4/2017 3:50 PM DEANA WILLIAMSON No. CLERK

FILED COURT OF CRIMINAL APPEALS ANGELA FARMER, § IN THE TEXAS COUKE017 Appellant § OF cmminatj^Wa-l^5™- clerk § V. § § APPELLATE COURT Nos. THE STATE OF TEXAS, 02-16-00110-CR, \

APPELLANT'S MOTION FOR EXTENSION OF TIME TO FILE PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL APPEALS:

COMES NOW, ANGELA FARMER, Appellant in the above-styled and

numbered causes, by and through her court-appointed attorney of record, Jack V.

Strickland and files this, Appellant's motion for extension of time to file petition for

discretionary review. In support of said motion, Appellant shows as follows:

• 1.

That the Second Court of Appeals affirmed Appellant's judgment in a non-

published memorandum opinion delivered May 25, 2017. A copy of that opinion i

was received by counsel on May 25,2017. A copy ofboth the judgment and opinion is attached hereto and marked as "Exhibit A" & "Exhibit B," respectively. In addition, a motion for rehearing and a motion for en banc consideration were filed

in the Second Court of Appeals on June 9, 2017 and July 31, 2017, respectively. Both motions were denied and a copy of the orders are attached hereto and marked

as "Exhibit C" (June 29,2017) &"Exhibit D" (August 10,2017), respectively.

That this extension oftime to file Appellant's petition for discretionary review is not soughtmerely for purposes of delay, but rather in an effort to ensure

justice andto afford Appellant her fundamental rightto appeal her conviction and

sentence. The motion is timely and proper in that it complies with Tex.RApp.Pro.,

R. 10.5(3) & R.68.2(c). Appellant has not previously sought an extension for this

filing. Appellant is incarcerated.

WHEREFORE, PREMISES CONSIDERED, Appellants prays that the

deadline for the filing of her petition for discretionary review be extended for thirty

days from Friday, September 8,2017 to Monday, October 9,2017. Respectfully Submitted,

/s/ Jack V. Strickland JACK V. STRICKLAND State Bar No. 193970000 ATTORNEY FOR DEFENDANT 909 Throckmorton Street Fort Worth, Texas 76102 Tel: (817)338-1000 Fax: (817)338-1020 jvstricklandl943@gmail.com

COUNSEL FOR APPELLANT (On Appeal Only)

CERTIFICATE OF CONFERENCE

On October 3, 2017, a telephone conference was held with Assistant District Attorney Debra Windsor concerning the foregoing motion. Ms. Windsor has no objection.

/s/ Jack V. Strickland Jack V. Strickland CERTIFICATE OF SERVICE

On October3, 2017 a true and correct copy of the foregoing Appellant's first request for extension of time to file a petition for discretionary reviewwas forwarded to:

1. Angela farmer, Jr. TDCJ# 02056021 Hobby Unit 742 FM 712 Marlin, Texas 76661

2. Debra A. Windsor Assistant District Attorney 401 W.Belknap St Fort Worth, Texas 76196

/s/Jack V.Strickland Jack V. Strickland COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00110-CR

Angela D. Farmer § From Criminal District Court No. 2

§ of Tarrant County (1418882D)

v. § May 25,2017

§ Opinion by Justice Gabriel

The State of Texas § (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was no error in the trial court's judgment. It is ordered that the judgment of

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

Bv /s/ Lee Gabriel Justice Lee Gabriel

SOflHT-^ COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00110-CR NO. 02-16-00111 -CR NO. 02-16-00112-CR

ANGELA D. FARMER APPELLANT

V.

THE STATE OF TEXAS STATE

FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NOS. 1418882D, 1418885D, 1418887D

MEMORANDUM OPINION1

In this consolidated appeal, Appellant Angela D. Farmer appeals from her

conviction of two first-degree felony counts of possession of a controlled

substance with intent to deliver and one third-degree felony count of evading

1SeeTex. R. App. P. 47.4. arrest or detention with a vehicle, arguing in two issues that the evidence is

insufficient to support her possession convictions and that she received

ineffective assistance of counsel during trial. We affirm.

I. BACKGROUND

On June 22, 2015, two undercover police officers assigned to the Fort

Worth Police Department's narcotics division parked their unmarked vehicle near

1015 East Morphy Street in Fort Worth as part of an investigation into possible

narcotics activity at that location. The officers observed a couple of individuals

lingering around a Honda Accord that was sitting in the residence's driveway who

appeared to be on the lookout for law enforcement. So the officers decided to

send in a confidential informant to attempt a drug buy. The informant walked up

to the driver's side of the Honda, leaned inside, purchased some illegal narcotics,

and walked back to the undercover officers' vehicle. The undercover officers

then radioed two uniformed officers, William Snow and Emilio Chavez, to report

what had occurred and asked them to make the scene, detain the Honda's

driver, and continue the investigation.

It took Officers Snow and Chavez about five minutes to arrive, and in the

meantime, the undercover officers saw a vehicle pull into the driveway, conduct

what appeared to be another drug transaction with the driver of the Honda, and

then leave. When Officers Snow and Chavez arrived, they noticed the Honda

backed into the driveway with someone seated in the driver's seat and two men

lingering outside of the Honda—one near the driver's side door and one on the porch of the residence. Officer Snow got out of his vehicle and began walking

toward the Honda, and as soon as he did so, the man who was standing near the

Honda began to walk away. Officer Chavez walked over to that man while

Officer Snow continued to the driver's side door of the Honda. The window was

rolled down, and Farmer, the car's sole occupant, was seated in the driver's seat.

Officer Snow looked inside the Honda and saw a sandwich bag that was

filled with pills sitting in the center console where the cup holders would be.

Based upon his training and experience, he believed the pills contained heroin

and cocaine. While he was at the driver's side window, Farmer put the Honda in

drive and sped away, striking Officer Snow in the hand and leg with her car in the

process. Farmer raced to a nearby alley, got out of her car, and continued

fleeing on foot. With the assistance of the undercover officers, Officers Snow

and Chavez located Farmer's vehicle in the alley, pulled in behind it, and ran

after her. The officers caught up with her and attempted to arrest her, but she

resisted, requiring Officer Chavez to deploy his Taser. Officers Snow and

Chavez were ultimately able to arrest her.

After Farmer had been arrested, one of the undercover officers searched

her abandoned car. Inside he found the following items:

• A Mentos candy bottle,1 located in the map pocket of the driver door, filled with somej capsules that contained cocaine and some that contained heroin; i

• A shaving kit located on the front passenger seat that contained individual baggies and a digital scale; • A bag of hypodermic needles located in the handle of the driver door; and

• Farmer's Texas identification card.

The officers did not, however, find the pill-filled sandwich bag that Officer Snow

had seen earlier.

In separate causes, a jury convicted Farmer of possession of a controlled

substance—cocaine—with intent to deliver (Cause No. 1418882D), see Tex.

Health & Safety Code Ann. § 481.112(a), (d) (West 2010); of possession of a

controlled substance—heroin—with intent to deliver (Cause No. 1418885D), see

id.; and of evading arrest or detention with a vehicle (Cause No. 1418887D), see

Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (West 2016). The jury assessed her

punishment at twenty years' confinement for each possession offense and five

years' confinement for the evading-arrest offense. The trial judge sentenced her

accordingly, ordering the three sentences to run concurrently. Farmer now

appeals.

II. SUFFICIENCY OF THE EVIDENCE

In her first issue, Farmer contends that the evidence is insufficient to

support either of her possession convictions.

In reviewing the sufficiency of the evidence to support a conviction, we

view all of 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

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins V. State, 493 S.W.3d 583, 599 (Tex. Crim.

App. 2016). In order to convict Farmer of possession of a controlled substance

with intent to deliver, the State had to prove beyond a reasonable doubt that she

(1) exercised actual care, custody, control, or management over a controlled

substance, (2) intended to deliver the controlled substance to another, and

(3) knew that the substance in her possession was a controlled substance. Tex.

Health & Safety Code Ann. § 481.002(38) (West Supp. 2016), § 481.112(a);

Cadoree v. State, 331 S.W.3d 514, 524 (Tex. App.—Houston [14th Dist.] 2011,

pet refd).

Farmer principally attacks the sufficiency of the evidence to support the

first element—that she exercised care, custody, control, or management over a

controlled substance—and she does so by pointing to the alleged lack of direct

evidence that she personally possessed the heroin or cocaine the officers found

in the Honda. However, the State was not required to prove this element—or,

indeed, any element—of Farmer's possession offenses with direct evidence; it

has long been the law that a conviction for a criminal offense can be based on

circumstantial evidence alone, and the standard of review for a circumstantial-

evidence case is the same as for a direct-evidence case. Nowlin v. State,

473 S.W.3d 312, 317 (Tex. Crim. App. 2015). While evidence leading to a strong

suspicion or mere probability of guilt is insufficient to support a conviction, if the i inferences made by the factfinder are reasonable in light of "the cumulative force

of all the evidence when considered in the light most favorable to the verdict," the

5 conviction will be upheld. Id. (quoting Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012)).

Here, the jury heard evidence of the following:

• 1015 East Morphy Street was located in a neighborhood with high narcotics activity.

• During the course of an unrelated narcotics investigation, an undercover narcotics officer twice personally observed activity at 1015 East Morphy Street that was consistent with illegal narcotics activity. The officer also received an independent report of suspected narcotics activity at that location from a neighborhood patrol officer.

• Undercover officers surveyed 1015 East Morphy Street and saw two individuals near Farmer's Honda who appeared to be acting as lookouts for law enforcement.

• A confidential informant purchased illegal narcotics from the person seated in the Honda's driver's seat.

• Before uniformed officers arrived, the undercover officers witnessed what they concluded was another person buying drugs from the person in the Honda.

• When Officer Snow approached the Honda, Farmer was the sole occupant, and she was seated in the driver's seat.

• Officer Snow saw a sandwich bag filled with pills in the Honda's center console.

While Officer Snow was standing near her car, Farmer sped off in an attempt to flee from the officers.

A search of the Honda revealed a Mentos candy bottle, located in the map pocket of the Idriver door, filled with capsules that contained cocaine and he'roin; a shaving kit located on the front passenger seat that contained individual baggies and a digital scale; a bag of hypodermic needles located in the handle of the driver door; and Farmer's Texas identification card. v_

• One of the undercover officers testified that the baggies inside the shaving kit were the kind that were usually used to package smaller amounts of narcotics and matched the baggie that held the narcotics the confidential informant had purchased from Farmer. He also testified that the digital scale inside the shaving kit was a kind that was commonly used to weigh out smaller amounts of narcotics to sell.

We conclude that, viewed in the light most favorable to the jury's verdict, the

above evidence and the reasonable inferences drawn from it are sufficient to

support a jury finding beyond a reasonable doubt that Farmer (1) exercised

actual care, custody, control, or management over the heroin and cocaine

discovered in her vehicle, (2) intended to deliver the heroin and cocaine to

another, and (3) knew that the heroin and cocaine in her possession were

controlled substances. See Tex. Health & Safety Code Ann. §§ 481.002(36),

.112(a); Cadoree, 331 S.W.3d at 524. We overrule Farmer's first issue.

III. INEFFECTIVE ASSISTANCE

In her second issue, Farmer argues that she received ineffective

assistance of trial counsel in violation of the federal and state constitutions. She

was originally appointed counsel, but on March 7, 2016—the day before trial—

her retained counsel filed a letter of representation stating that he represented

her. Farmer contends that her retained counsel rendered ineffective assistance

as demonstrated by several alleged deficiencies in his performance at trial, but

she focuses primarily on her retained counsel's entry into the case less than

twenty-four hours before trial, arguing that such a late entry into the case meant that he could not and did not have an adequate amount of time to prepare for

trial. Farmer acknowledges the familiar proposition that direct appeal is usually

an inadequate vehicle for raising an ineffective-assistance claim, e.g., Menefield

v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012), but she contends that

this appeal is one.of the rare instances in which we can address such a claim on

direct appeal because her counsel's ineffectiveness is apparent from the record,

see Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).

To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that her counsel's representation was deficient

and that the deficiency prejudiced the defense. Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d

289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be "firmly

founded in the record," and "the record must affirmatively demonstrate" the

meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). An appellant's failure to satisfy one prong of the Strickland

test negates a court's need to consider the other prong. Williams v. State,

301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

In evaluating the effectiveness of counsel under the deficient-performance

prong, we look to the totality of the representation and the particular

circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether

counsel's assistance was reasonable under all the circumstances and prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S. at

8 688-89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of counsel's

representation is highly deferential, and the reviewing court indulges a strong

presumption that counsel's conduct was not deficient. Nava, 415 S.W.3d at 307-

08. It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel's reasons

for failing to do something do not appear in the record. Menefield, 363 S.W.3d at

593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel

"should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective." Menefield, 363 S.W.3d at 593. If trial counsel is not

given that opportunity, we should not conclude that counsel's performance was

deficient unless the challenged conduct was "so outrageous that no competent

attorney would have engaged in it." Nava, 415 S.W.3d at 308.

To the extent Farmer argues that her counsel's appearance in her case

less than a day before trial establishes that she received ineffective assistance of

counsel, we conclude otherwise. The record is not only silent as to the reasons

why Farmer's counsel did not appear in her case sooner, but it affirmatively

reflects that she wanted to proceed to trial with her counsel despite his late entry

into her case. Before the jury was seated, Farmer testified that her counsel had

explained to her what was going on with her case. Her counsel then asked, "And i

even though I've just been hired, you decided you want me to stay on your case; !

is that correct?" Farmer replied, "Yes, sir." She also testified that her counsel

had conveyed to her a plea offer from the State and that she had rejected that offer. She acknowledged that it was her decision to reject the State's offer and

that she decided that she wanted to proceed to trial. Because the record is silent

as to why Farmer's counsel did not appear in her case until the day before trial,

and given Farmer's affirmative decision to proceed with her counsel despite that

fact, we cannot conclude that her counsel's late entry into this case is sufficient to

establish the deficient-performance prong of the Strickland test. See 466 U.S. at

687,104 S. Ct. at 2064; Nava, 415 S.W.3d at 307.

Farmer also complains of her counsel's "truncated and superficiar voir dire

examination of the jury panel; failure to call any witnesses; minimal cross-

examination of the State's witnesses; minimal objections to the testimony of the

State's witnesses and the State's exhibits; inadequate offer of proof regarding

her decision not to testify; and failure to object to the trial court's proposed jury

charge or tender any requested special charges. She contends that all of this

conduct establishes her ineffective-assistance claim. However, the record is

silent regarding the reasons why Farmer's counsel conducted himself the way he

did on all of these matters. See Menefield, 363 S.W.3d at 593. And we cannot

say that the conduct described above was "so outrageous that no competent

attorney would have engaged in it." See id. Thus, we cannot conclude that this

conduct is sufficient to establish the deficient-performance prong of the Strickland

test. See id. (holding that where the reasons for counsel's conduct do not appear j in the record, "the appellate court should not find deficient performance unless

the challenged conduct was 'so outrageous that no competent attorney would 10 have engaged in it."' (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005))).

We hold that Farmer has not met her burden to satisfy the first prong of the Strickland test—to establish that her retained counsel's representation was deficient. See 466 U.S. at 687, 104 S. Ct. at 2064; Nava, 415 S.W.3d at 307. Having so concluded, we need not address the second prong of the Strickland test. See Williams, 301 S.W.3d at 687. We overrule Farmer's second issue.

IV. CONCLUSION

Having overruled Farmer's issues, we affirm the trial court's judgments.

/s/ Lee Gabriel

LEE GABRIEL JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: May 25, 2017

11 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NOS. 02-16-00110-CR 02-16-00111-CR 02-16-00112-CR

FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 1418882D, 1418885D, 1418887D

ORDER

We have considered "Appellant's Motion For Rehearing." It is the opinion of the court that the motion for rehearing should be and is hereby denied and that the opinion and judgment of May 25, 2017 stand unchanged. The clerk of this court is directed to transmit a copy of this order to the attorneys of record. SIGNED June 29, 2017.

PANEL: WALKER, MEIER, and GABRIEL, JJ. mrrsC MEIER. J. would grant. v~

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 1418882D, 1418885D, 1418887D

We have considered "Appellant's Motion For Reconsideration En Banc." It is the opinion of the court that the motion for reconsideration en banc

should be and is hereby denied and that the opinion and judgment of May 25,

2017 stand unchanged.

The clerk of this court is directed to transmit a copy of this order to the attorneys of record. SIGNED August 10, 2017.

s&jbitJ) /s/ Lee Gabriel

EN BANC