In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-26-00017-CR
JACOB AVINGTON HUTCHINS, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 235th District Court Cooke County, Texas
Trial Court No. CR25-00051
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
A Cooke County1 jury convicted Jacob Avington Hutchins of possession of a controlled substance, methamphetamine, in an amount of four grams or more but less than 200 grams, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(a), (d) (Supp.). After a punishment trial, the jury assessed a sentence of ten years’ imprisonment and a fine of $250.00. See TEX. PENAL CODE ANN. § 12.33. In three points of error, Hutchins complains that (1) the evidence was legally insufficient to support Hutchins’s conviction, (2) he was denied effective assistance of counsel when trial counsel repeatedly failed to object to inadmissible extraneous offense evidence, and (3) he was denied effective assistance of counsel when trial counsel failed to request a limiting instruction regarding that same evidence. Because we conclude the evidence was sufficient to support Hutchins’s conviction and there is no reasonable probability that any deficiencies in trial counsel’s performance would have altered the outcome of his trial, we affirm the trial court’s judgment, as modified. I. Background Hutchins was indicted for “knowingly and intentionally possess[ing], with intent to deliver a controlled substance, namely methamphetamine, in an amount of [four] grams or more but less than 200 grams.” The State abandoned the “intentionally” state of mind at trial.
At trial, the jury first heard testimony from Johnny Freeman, an officer with the Gainesville Police Department (GPD) K9 unit. Freeman testified that he stopped a gray Dodge
1 This appeal was transferred to this Court from the Second Court of Appeals pursuant to a Texas Supreme Court docket equalization order. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). Accordingly, we apply the precedent of the Second Court of Appeals in deciding this case to the extent that it conflicts with our own. See TEX. R. APP. P. 41.3.
3
Ram pickup truck on January 2, 2025, for expired registration. Richard Huneycutt was driving and Hutchins was the passenger. Huneycutt gave Freeman consent to search the truck. Freeman asked Hutchins whether he claimed any items in the truck, and Hutchins said that the reddish bag in the floorboard was his. Hutchins gave Freeman consent to search the bag. Inside Hutchins’s bag, which Freeman testified was between Hutchins’s legs in the floorboard, Freeman found a small scale with a white crystal residue around the edge. Freeman said the residue was consistent with methamphetamine, but the crystal residue was not tested. Freeman testified that Hutchins told him “that he use[d] the scale to weigh jewelry, like sterling silver and gold.”
As Freeman continued his search, he testified that he found a cigarette package containing a plastic baggy on the floorboard right behind where Hutchins’s bag had been. The package was on the front passenger-side floorboard at the edge of the seat. Freeman stated that the cigarette package was closed and taped over with a packing or shipping label. The baggy inside the cigarette package contained 36.72 grams of methamphetamine.
In the pocket on the driver’s side door panel, Freeman found a small piece of plastic containing 0.62 grams of methamphetamine.2 Freeman testified that Hutchins told him that he did not know anything about the methamphetamine and claimed that it was not his. Freeman stated that Huneycutt also denied knowing anything about the methamphetamine. Video footage from Freeman’s body-camera was admitted, without objection, allowing the jury to see the location of Hutchins’s bag in the
2 Hutchins was charged with possession of the methamphetamine that was found on the passenger side of the truck, and Huneycutt was charged with possession of the methamphetamine found on the driver’s side.
4
floorboard between his feet and the corner of the cigarette package sticking out from under the front passenger seat after the reddish bag was removed.
Freeman testified that Huneycutt told him that he gives people rides, and that Hutchins told him that he had just gotten in the truck to get a ride from Huneycutt. Freeman further testified that, in his experience, people use methamphetamine to pay for favors, such as giving someone a ride. Freeman testified that he believed that the small amount of methamphetamine found in the driver’s side door pocket could have been payment to Huneycutt for giving Hutchins a ride.
Ronald Alford, a narcotics investigator with the GPD, testified that he was on duty on the date of the traffic stop, and heard over the radio that the traffic stop involved Huneycutt and Hutchins, both of whom Alford recognized. Over Hutchins’s objection, Alford testified that Huneycutt and Hutchins “were known to [him] for narcotics.” Alford testified that he proceeded to the scene of the traffic stop, where Huneycutt told him that he was giving Hutchins a ride. Alford testified that Huneycutt told him that he got paid in methamphetamine to transport people. Alford observed that Freeman found methamphetamine in the driver’s side door pocket and a large quantity of methamphetamine in a cigarette package in the front passenger side where Hutchins was seated. Alford testified that the amount of methamphetamine found in the cigarette package was not consistent with an amount a user would carry but it was consistent with a distributor. After Freeman was cross-examined on the fact that Huneycutt routinely gave people rides, meaning other people would be in and out of the truck, Alford testified that “about the only time [people] abandon their drugs” is when “law enforcement is chasing after them or
5
something.” Alford agreed that it would not be common for someone to leave their methamphetamine in a vehicle and abandon it there.
Alford interviewed Hutchins at the jail after Hutchins’s arrest. Alford said Hutchins denied having anything to do with the methamphetamine located on his side of the truck. Alford was questioned whether Hutchins made any statements against his penal interest during the interview. Alford testified that he told Hutchins during the interview that “it was no secret to [either of them], [they] both had knowledge and knew that [Hutchins had] distributed methamphetamine[] in the past.” Alford said that in response, Hutchins nodded his head and gave a verbal response indicating that he concurred that he had distributed methamphetamine in the past. The audio recording of that interview was admitted without objection. The interview revealed that Hutchins was on probation at the time of the incident. Alford testified that Hutchins’s probation was a possible reason that Hutchins was trying to distance himself from the contraband.
The jury found Hutchins guilty of the lesser-included offense of possession of a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d). II. Sufficiency of the Evidence In his first point of error, Hutchins urges that the evidence was legally insufficient to show that he knowingly possessed methamphetamine.
A. Standard of Review “The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence.” Braughton v. State, 569 S.W.3d 596, 607 (Tex. Crim.
6
App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 315–16 (1979); Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (Cochran, J., concurring)). “We assess legal sufficiency by viewing the evidence in the light most favorable to the verdict and asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bittick v. State, 707 S.W.3d 366, 368 (Tex. Crim. App. 2024) (citing Jackson, 443 U.S. at 319). “We compare the trial evidence to ‘the elements of the offense as defined by a hypothetically correct jury charge for the case.’” Id. at 369 (quoting Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018)).
“This familiar standard ‘recognizes the trier of fact’s role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence.’” Braughton, 569 S.W.3d at 608 (quoting Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011)). “On review, this Court determines whether the necessary inferences made by the trier of fact are reasonable, based upon the cumulative force of all the evidence.” Id. (quoting Adames, 353 S.W.3d at 860). “We presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we defer to that resolution.” Id. “As a reviewing court, we may not reevaluate the weight and credibility of the evidence in the record and thereby substitute our own judgment for that of the factfinder.” Id. “A reviewing court is thus ‘required to defer to the jury’s credibility and weight determinations.’” Id. (quoting Brooks, 323 S.W.3d 899). “However, juries are not permitted to come to conclusions based on ‘mere speculation or factually unsupported inferences or presumptions.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)).
7
“In reviewing the sufficiency of the evidence, we should look at ‘“events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.”’” Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021) (quoting Hooper, 214 S.W.3d at 13). “Each fact need not point directly and independently to the guilt of a defendant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Walker v. State, 594 S.W.3d 330, 335 (Tex. Crim. App. 2020) (citing Hooper, 214 S.W.3d at 13). “Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). Further, we “consider all of the admitted evidence, regardless of whether it was properly admitted.” Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson, 443 U.S. at 319).
B. Applicable Law “[A] person commits an offense if the person knowingly . . . possesses a controlled substance listed in Penalty Group 1 . . . .” TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). Methamphetamine is a substance in penalty group one. TEX. HEALTH & SAFETY CODE ANN. § 481.102(6).
“‘Possession’ means actual care, custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (Supp.); TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (Supp.). Thus, “[t]o prove unlawful possession of a controlled substance, the State must prove that: (1) the
8
accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), abrogated by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015).
“A person’s ‘fortuitous proximity’ to drugs is not sufficient to establish possession; there must be an affirmative link between the defendant and the substances to establish possession . . . .” Johnson v. State, 583 S.W.3d 300, 308 (Tex. App.—Fort Worth 2019, pet. ref’d) (per curiam).
The “affirmative links rule” is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. This rule simply restates 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.
Thus, we have formulated the rule that “[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances [that] affirmatively link the accused to the contraband.”
Poindexter, 153 S.W.3d at 406 (first alteration in original) (footnotes omitted) (citations omitted) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)). To determine whether the necessary links exist, courts examine the following nonexclusive list of factors:
(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
9
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.
Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (quoting Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)); Johnson, 583 S.W.3d at 308 (quoting Tate, 500 S.W.3d at 414). “The number of factors present is not as important as the degree to which the factors tend to affirmatively link the accused to the contraband.” Williams v. State, 906 S.W.2d 58, 65 (Tex. App.—Tyler 1995, pet. ref’d). “For evidence of sufficient affirmative links, each case must be reviewed on its own facts.” Id. “As with any other element of an offense, the affirmative link may be established by direct or circumstantial evidence.” Johnson, 583 S.W.3d at 308 (citing Evans, 202 S.W.3d at 162).
But as the [Texas C]ourt of [C]riminal [A]ppeals notes, “[a]lthough these factors can help guide a court’s analysis, ultimately the inquiry remains that set forth in Jackson: Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt?”
Id. at 308–09 (fourth alteration in original) (quoting Tate, 500 S.W.3d at 414 (citing Jackson, 443 U.S. at 318–19)). “When analyzing the sufficiency of the evidence supporting the element of possession, we cannot focus our analysis on ‘each circumstance of guilt in isolation without considering the cumulative force of all of the evidence.’” Id. at 309 (quoting Tate, 500 S.W.3d at 417). “Our review based on this cumulative view of the evidence requires that ‘the logical force of all of the admitted evidence must be considered in the light most favorable to the conviction, meaning that all reasonable inferences from the evidence must be resolved in favor of the jury’s guilty verdict.’” Id. (quoting Tate, 500 S.W.3d at 417).
10
C. Analysis Here, the State had to prove, beyond a reasonable doubt, that Hutchins knowingly possessed four grams or more but less than 200 grams of methamphetamine.3 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d). Rather than “mechanically checking off” the factors listed in Tate, “we examine the cumulative force of the evidence in the light most favorable to the conviction to determine whether it supports a reasonable inference of possession.” Johnson, 583 S.W.3d at 309.
Hutchins claimed the reddish bag as his own, in which the scale containing a crystal-
methamphetamine-like residue was found. Although Hutchins denied knowledge of the residue and said that he used the scale to weigh jewelry, he admitted that the bag containing the scale belonged to him. That bag was between Hutchins’s legs in the passenger-side front floorboard of Huneycutt’s truck. Just behind the bag, at the edge of Hutchins’s seat, was a cigarette package containing a baggy with a large, dealer quantity of methamphetamine. Hutchins admitted during his interview with Alford that he had a history of distributing methamphetamine. On Huneycutt’s side of the truck was a small amount of methamphetamine. Huneycutt told Alford that he got paid in methamphetamine to give people rides. Hutchins told Alford he had gotten a ride from Huneycutt.
That evidence established several affirmative links. Hutchins was present when the search was conducted. The methamphetamine was recovered from inside the truck, “an enclosed
3 Hutchins was indicted for intentionally or knowingly possessing methamphetamine with an intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.1123(a), (d) (Supp.). The State abandoned the “intentionally” state of mind at trial, and the jury found Hutchins guilty of the lesser-included offense of possession of a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d).
11
space.” See Robinson v. State, 174 S.W.3d 320, 327 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (“The truck and the factory compartment [behind the back seat of the truck] are enclosed spaces.”). The methamphetamine was found in the cigarette package behind Hutchins’s bag, sticking out from the edge of Hutchins’s seat. The methamphetamine was more than a user amount. See Roberson v. State, 80 S.W.3d 730, 740 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“The amount of contraband found is a factor we can consider in determining if an affirmative link exists. . . . [T]his factor is more effective at establishing an affirmative link as larger quantities are involved.” (citation omitted)). The scale, discovered in Hutchins’s bag, is drug paraphernalia. See Johnson v. State, No. 02-18-00310-CR, 2019 WL 4010229, at *3 (Tex. App.—Fort Worth Aug. 26, 2019, no pet.) (mem. op., not designated for publication).
Hutchins urges that his close proximity to the methamphetamine is not sufficient to show knowing possession. But the State established additional links, discussed above. Hutchins also claims that Randle v. State, 828 S.W.2d 315, 317 (Tex. App.—Austin 1992, no pet.) (per curiam), controls because the facts are nearly identical and the links were unpersuasive. One major factual distinction between Randle and this case is that there was no evidence that Randle “was familiar with cocaine.” See id. at 318. Further, Randle relied heavily and based its conclusion regarding evidence of possession on Humason v. State, 728 S.W.2d 363 (Tex. Crim. App. 1987).4 See Randle, 828 S.W.2d at 317–19. Humason employed an “outstanding reasonable hypothesis” test that has been abrogated by the Texas Court of Criminal Appeals. See Brown, 911 S.W.2d at 748.
4 See Humason v. State, 728 S.W.2d 363 (Tex. Crim. App. 1987), abrogated by Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995).
12
The combined force of all the affirmative links allowed the jury to rationally find beyond a reasonable doubt that Hutchins had the requisite knowledge and the possession and control of the contraband. We conclude that the record reflects sufficient evidence to support the verdict. As a result, we overrule Hutchins’s first point of error. III. Ineffective Assistance of Counsel In his second and third points of error, Hutchins claims that he was denied effective assistance when trial counsel (1) repeatedly failed to object to inadmissible extraneous-offense evidence and (2) failed to request a limiting instruction regarding that same evidence. As did Hutchins, we consider these two points together.
A. Standard of Review The Sixth Amendment to the United States Constitution guarantees an accused the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI, Strickland v. Washington, 466 U.S. 668, 680 (1984); see Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017) (orig. proceeding). “[W]e review the adequacy of representation” using Strickland’s two-step test. Tanner v. State, 707 S.W.3d 371, 376 (Tex. Crim. App. 2024) (citing Strickland, 466 U.S. 668); see Rachal v. State, 725 S.W.3d 152, 165 (Tex. App.—Fort Worth 2025, pet. ref’d). “In order to reverse a conviction for ineffective assistance of counsel, we must find that [a] defendant has shown: (1) counsel’s performance was deficient and (2) the defendant suffered prejudice.” Tanner, 707 S.W.3d at 376 (citing Strickland, 466 U.S. at 694). “An appellant bears the burden of proving ineffectiveness by a preponderance of the evidence.” Id.
13
The right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
The first Strickland prong, the deficient-performance prong, requires a defendant claiming ineffective assistance of counsel to “prove that his counsel’s actions fell ‘below the professional norm of reasonableness.’” Tanner, 707 S.W.3d at 376 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (per curiam), abrogated by Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998)). We consider “the totality of the representation and the particular circumstances of each case in evaluating effectiveness of counsel.” Id. “There is a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance.” Id. (citing Strickland, 466 U.S. at 689, Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). Accordingly, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
We apply a “strong presumption” that trial counsel was competent and presume that trial counsel’s actions and decisions were reasonably professional and motivated by “sound trial strategy.” Jackson, 877 S.W.2d at 771 (quoting Strickland, 466 U.S. at 689). Also, when an appellate record is silent on why trial counsel failed to take specific actions, “the appellant has failed to rebut the presumption that trial counsel’s decision was in some way—be it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).
14
The second Strickland prong, sometimes referred to as “the prejudice prong,” “may be measured in one of two ways: a reasonable probability of a different outcome or a reasonable probability of a different decision by the defendant.” Swinney v. State, 663 S.W.3d 87, 90 (Tex. Crim. App. 2022). “A reasonable probability [means] a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The manner in which prejudice must be shown “depends on the possible result of the deficient performance.” Swinney, 663 S.W.3d at 90.
“Failure to make the required showing on either prong of the Strickland analysis defeats the ineffectiveness claim.” Tanner, 707 S.W.3d at 376–77. “This is why ineffective-assistance claims are ‘generally not successful on direct appeal and are more appropriately urged in a hearing on an application for a writ of habeas corpus.’” Id. at 377 (quoting Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)). “Although the record [may] also be developed through a motion for new trial, the record on direct appeal is ‘usually inadequately developed and “cannot adequately reflect the failings of trial counsel” for an appellate court “to fairly evaluate the merits of such a serious allegation.”’” Id. (quoting Lopez, 343 S.W.3d at 143) (footnote omitted) (citations omitted).
B. Analysis Hutchins’s ineffective assistance points center on six instances of trial counsel’s failure to “properly object” to inadmissible evidence and his failure to “corral the jury’s consideration of this evidence once it was admitted.” See Ex parte Salinas, 664 S.W.3d 894, 916 (Tex. Crim. App. 2022) (orig. proceeding). Yet trial counsel actually did object to one of the instances
15
Hutchins complains of. Because Hutchins provided no authority that the objection was improper, we consider only the other five instances of alleged failures to object. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”).
The five instances of which Hutchins complains include a comment made by Freeman on his body-camera footage that “a lot of dope” goes around with Hutchins; Alford’s testimony regarding Hutchins’s non-verbal confirmation5 during his interview of his known history of distributing methamphetamine and the audio-recorded exhibit of the interview; Hutchins’s statement during the recorded interview that he was supposed to be reporting to probation that day; and Alford’s testimony that Hutchins’s existing probation might be a reason Hutchins was trying to distance himself from the methamphetamine during the traffic stop.
First, we note that the comment about “a lot of dope” on Freeman’s body-camera footage was apparently not played for the jury during trial. Although the body-camera recording was introduced into evidence, and the jury may have listened to it during deliberations, the portion of the record to which Hutchins directs us to refers to a fast-forwarding of the body-camera recording but no questioning or testimony regarding the “a lot of dope” comment. We find no record in the testimony regarding “a lot of dope.”
5 Although our record indicates that Alford testified that Hutchins’s confirmation of prior dealing was verbal, Hutchins complains on appeal about a non-verbal confirmation.
16
Next, we turn to the second Strickland prong regarding prejudice.6 Even assuming that all the complained-of evidence points to prior bad acts and the failure to object and request a limiting instruction to the jury indicates deficiencies on the part of trial counsel, we do not believe that there is a reasonable probability that these deficiencies could have affected the outcome of the trial. The inculpatory evidence is strong, and trial counsel’s failure to object to the extraneous-misconduct testimony and request an instruction would not likely have changed the jury’s guilty verdict. As discussed above, Hutchins admitted that he used the scale in the bag that he admitted belonged to him, and the jury rationally concluded that Hutchins possessed between four and 200 grams of methamphetamine. Although Hutchins complains that the evidence of prior bad acts undercut his trial strategy that the methamphetamine belonged to a previous passenger and Hutchins was merely “an innocent bystander,” the jury was free to discount that evidence in favor of Alford’s testimony that a person in possession of drugs would not likely abandon them. And rather than convicting Hutchins on the charged offense of possession with intent to deliver, the jury convicted him of the lesser-included offense of possession. That verdict indicates the jury carefully evaluated the evidence.
We conclude that Hutchins’s claims do not satisfy Strickland’s prejudice prong because there is no reasonable probability that these alleged deficiencies would have altered the outcome of his trial.
We overrule Hutchins’s second and third points of error.
6 “The two prongs of Strickland need not be analyzed in any particular order, and if a defendant fails to make the required showing in one, we need not address the other.” Rachal, 725 S.W.3d at 165 (citing Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (orig. proceeding) (citing Strickland, 466 U.S. at 697)).
17
IV. We Modify the Judgment to Correct the Statute for Offense Hutchins was indicted for possession with the intent to deliver methamphetamine, see TEX. HEALTH & SAFETY CODE ANN. § 481.112, which is a controlled substance in penalty group one, TEX. HEALTH & SAFETY CODE ANN. § 481.102(6). The nunc pro tunc judgment indicates that the offense for which Hutchins was convicted was the lesser-included offense of possession of a controlled substance in penalty group 1-B. In addition, the judgment shows that the statute for the convicted offense is Section 481.1123(d) of the Texas Health and Safety Code, which governs possession with intent to deliver a controlled substance listed in penalty group 1-B. See TEX. HEALTH & SAFETY CODE ANN. § 481.1123. A review of the jury’s verdict indicates the jury did not convict Hutchins under Section 481.1123; rather, the jury convicted Hutchins under Section 481.115, a lesser-included offense of possession of a controlled substance in penalty group one. See TEX. HEALTH & SAFETY CODE ANN. § 481.115.
Appellate courts have the power to correct clerical errors. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). This Court may “modify the trial court’s judgment and affirm it as modified.” TEX. R. APP. P. 43.2(b). This authority does not depend “on a party’s request nor on whether a party objected in the trial court.” Cain v. State, 621 S.W.3d 75, 88 (Tex. App.— Fort Worth 2021, pet. ref’d) (quoting Ette v. State, 551 S.W.3d 783, 792 (Tex. App.—Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex. Crim. App. 2018)); see Hall v. State, 373 S.W.3d 168, 171– 72 (Tex. App.—Fort Worth 2012, pet. ref’d) (“A judgment may reflect a clerical error when it incorrectly records the judgment rendered, so long as a product of judicial reasoning is not involved.”).
18
“Our authority to modify a trial court’s judgment is not restricted to the correction of clerical errors.” Van Flowers v. State, 629 S.W.3d 707, 712 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (citing Bigley, 865 S.W.2d at 27). Here, though, we consider this error to be of the clerical-error sort—the type that is “indisputably reflected” by the record and “readily correctable by reference to information in the record.” Id. V. Conclusion We modify the trial court’s nunc pro tunc judgment by removing “LESSER INCLUDED POSS CS PG 1-B>=4G<200G” as the offense for which Hutchins was convicted and replace it with “LESSER INCLUDED POSS CS PG 1>=4G<200G.” We further modify the trial court’s nunc pro tunc judgment by removing Section “481.1123(d) Health and Safety Code” as the statute of offense and replace it with Section “481.115(d) Health and Safety Code.”
As modified, we affirm the trial court’s judgment.
Jeff Rambin
Justice
Date Submitted: August 10, 2026 Date Decided: August 14, 2026
Do Not Publish