AFFIRM; and Opinion Filed April 15, 2014.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01348-CR
JAMES MARQUETTE BRADLEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 2-12-256
MEMORANDUM OPINION Before Justices O’Neill, Lang-Miers, and Evans Opinion by Justice O'Neill James Marquette Bradley appeals his conviction for possession of cocaine. After finding
appellant guilty, the jury assessed punishment at thirty-five years’ confinement. In three issues,
appellant contends: (1) the trial court erred in not instructing the jury in the charge to disregard
his guilty pleas, and (2) he was denied effective assistance of counsel. For the following reasons,
we affirm the trial court’s judgment.
The grand jury indicted appellant for possession of a controlled substance and for three
theft of a firearm offenses. Appellant pleaded guilty to all four offenses. At the plea hearing, the
State presented evidence of appellant’s guilt. Officer James Goff testified that he observed two
cars with paper Arkansas plates that were speeding. The vehicles seemed to be traveling
together and he stopped the one that was in the “lead.” Appellant was in the passenger seat. As soon the car stopped, appellant exited carrying a backpack and fled behind a truck stop. Goff
called for back-up.
Police could not initially locate appellant. They finally did so about forty-five minutes
later with the assistance of a helicopter with thermal imaging capabilities. It was a cold night
and appellant, who had been hiding in a pond, was suffering from hypothermia. After appellant
was apprehended, police recovered the backpack from the pond. It contained sixty-eight grams
of cocaine and three loaded stolen firearms. The State presented expert testimony that the street
value of the cocaine, if it had been “cut,” would have been about $10,000.
Appellant testified that when the car was pulled over, he and his friend Demetris were
returning to Texarkana from Dallas. They were traveling with others, who were in the vehicle
behind them. One of them, Demontre Neil, had put the backpack in Demetris’s car. When
police pulled Demetris’s car over, Demontre called appellant and told him to grab the backpack
and run. Appellant did so. Appellant denied knowing what was inside the backpack, but said he
was pleading guilty because he had possessed it. Appellant admitted that his attorney had
explained the charges against him, and he was not trying to change his plea. He said he was
pleading guilty so the jury would show mercy on him.
After appellant testified, the trial court instructed the jury that, based on appellant’s
testimony, the law required it to withdraw appellant’s guilty pleas, and enter not guilty pleas on
his behalf. The trial court further instructed the jury to disregard the guilty pleas. After the trial
court withdrew the guilty pleas, appellant was recalled and testified he had entered the pleas
based on a misunderstanding of the law, claiming he did not know the law required that he be
aware of the items he possessed.
Before closing arguments, the State requested it be permitted to abandon the stolen
firearms charges, instead of seeking a continuance, because it had not secured the presence of the
–2– complaining witnesses in those cases. Appellant did not object, and the trial court granted the
State’s request.
In closing, the State argued the evidence showed beyond a reasonable doubt that
appellant knowingly possessed the cocaine. The State did not reference appellant’s guilty pleas
in any regard. Appellant did reference his pleas to highlight the State’s burden to show knowing
possession. Appellant argued he never denied that he knew there was “probably . . . something .
. . illegal” in the backpack, asserting that “in his mind” that made him guilty. But he argued that
did not equal guilt because he did not know about the cocaine. The jury nevertheless found
appellant guilty of possession.
In the first and second issues, appellant asserts the trial court erred in not instructing the
jury in the written charge to disregard his guilty pleas. Appellant concedes he did not object to
the charge but asserts the “error” is subject to review under Almanza 1 because, in the absence of
the instruction, the trial court did not properly charge the jury on the “law applicable to the case”
as required by article 36.14 of the code of criminal procedure. TEX. CODE CRIM. PROC. ANN. art.
36.14 (West 2007).
As noted above, the trial court orally instructed the jury not to consider appellant’s guilty
pleas. In the charge, the trial court instructed the jury appellant was presumed innocent, that the
jury was required to find appellant committed each element of the offense beyond a reasonable
doubt, and that it could only consider the evidence offered at trial in doing so. Almanza does not
apply unless the appellate court first finds “error” in the jury charge. See Posey v. State, 966
S.W.2d 57, 60 (Tex. Crim. App. 1998). Appellant cites no authority to support his contention
the omitted instruction was necessary in order for the trial court’s charge to properly instruct the
jury on the “law applicable to the case.” Because appellant has failed to provide argument or
1 Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g).
–3– authority that the charge contained error, these issues are inadequately briefed. See TEX. R. APP.
P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). We resolve the first
and second issues against appellant.
In his third issue, appellant contends he received ineffective assistance of counsel. To
successfully assert an ineffective assistance of counsel challenge, an appellant must show that (1)
counsel’s representation fell below an objective standard of reasonableness, and (2) the deficient
performance prejudiced the defendant. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim.
App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). An ineffective
assistance claim must be “firmly founded in the record,” and the record must “affirmatively
demonstrate” the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005). Appellate review of defense counsel’s representation is highly deferential and presumes
that counsel’s actions fell within the wide range of reasonable and professional assistance. Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Usually, the record on direct appeal will
not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical
or strategic decision making as to overcome the presumption of effective assistance. Id.
Appellant asserts his trial counsel was ineffective because trial counsel (1) advised him to
plead guilty and then elicited testimony that he did not know what was in the backpack, (2) failed
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AFFIRM; and Opinion Filed April 15, 2014.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01348-CR
JAMES MARQUETTE BRADLEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 2-12-256
MEMORANDUM OPINION Before Justices O’Neill, Lang-Miers, and Evans Opinion by Justice O'Neill James Marquette Bradley appeals his conviction for possession of cocaine. After finding
appellant guilty, the jury assessed punishment at thirty-five years’ confinement. In three issues,
appellant contends: (1) the trial court erred in not instructing the jury in the charge to disregard
his guilty pleas, and (2) he was denied effective assistance of counsel. For the following reasons,
we affirm the trial court’s judgment.
The grand jury indicted appellant for possession of a controlled substance and for three
theft of a firearm offenses. Appellant pleaded guilty to all four offenses. At the plea hearing, the
State presented evidence of appellant’s guilt. Officer James Goff testified that he observed two
cars with paper Arkansas plates that were speeding. The vehicles seemed to be traveling
together and he stopped the one that was in the “lead.” Appellant was in the passenger seat. As soon the car stopped, appellant exited carrying a backpack and fled behind a truck stop. Goff
called for back-up.
Police could not initially locate appellant. They finally did so about forty-five minutes
later with the assistance of a helicopter with thermal imaging capabilities. It was a cold night
and appellant, who had been hiding in a pond, was suffering from hypothermia. After appellant
was apprehended, police recovered the backpack from the pond. It contained sixty-eight grams
of cocaine and three loaded stolen firearms. The State presented expert testimony that the street
value of the cocaine, if it had been “cut,” would have been about $10,000.
Appellant testified that when the car was pulled over, he and his friend Demetris were
returning to Texarkana from Dallas. They were traveling with others, who were in the vehicle
behind them. One of them, Demontre Neil, had put the backpack in Demetris’s car. When
police pulled Demetris’s car over, Demontre called appellant and told him to grab the backpack
and run. Appellant did so. Appellant denied knowing what was inside the backpack, but said he
was pleading guilty because he had possessed it. Appellant admitted that his attorney had
explained the charges against him, and he was not trying to change his plea. He said he was
pleading guilty so the jury would show mercy on him.
After appellant testified, the trial court instructed the jury that, based on appellant’s
testimony, the law required it to withdraw appellant’s guilty pleas, and enter not guilty pleas on
his behalf. The trial court further instructed the jury to disregard the guilty pleas. After the trial
court withdrew the guilty pleas, appellant was recalled and testified he had entered the pleas
based on a misunderstanding of the law, claiming he did not know the law required that he be
aware of the items he possessed.
Before closing arguments, the State requested it be permitted to abandon the stolen
firearms charges, instead of seeking a continuance, because it had not secured the presence of the
–2– complaining witnesses in those cases. Appellant did not object, and the trial court granted the
State’s request.
In closing, the State argued the evidence showed beyond a reasonable doubt that
appellant knowingly possessed the cocaine. The State did not reference appellant’s guilty pleas
in any regard. Appellant did reference his pleas to highlight the State’s burden to show knowing
possession. Appellant argued he never denied that he knew there was “probably . . . something .
. . illegal” in the backpack, asserting that “in his mind” that made him guilty. But he argued that
did not equal guilt because he did not know about the cocaine. The jury nevertheless found
appellant guilty of possession.
In the first and second issues, appellant asserts the trial court erred in not instructing the
jury in the written charge to disregard his guilty pleas. Appellant concedes he did not object to
the charge but asserts the “error” is subject to review under Almanza 1 because, in the absence of
the instruction, the trial court did not properly charge the jury on the “law applicable to the case”
as required by article 36.14 of the code of criminal procedure. TEX. CODE CRIM. PROC. ANN. art.
36.14 (West 2007).
As noted above, the trial court orally instructed the jury not to consider appellant’s guilty
pleas. In the charge, the trial court instructed the jury appellant was presumed innocent, that the
jury was required to find appellant committed each element of the offense beyond a reasonable
doubt, and that it could only consider the evidence offered at trial in doing so. Almanza does not
apply unless the appellate court first finds “error” in the jury charge. See Posey v. State, 966
S.W.2d 57, 60 (Tex. Crim. App. 1998). Appellant cites no authority to support his contention
the omitted instruction was necessary in order for the trial court’s charge to properly instruct the
jury on the “law applicable to the case.” Because appellant has failed to provide argument or
1 Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g).
–3– authority that the charge contained error, these issues are inadequately briefed. See TEX. R. APP.
P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). We resolve the first
and second issues against appellant.
In his third issue, appellant contends he received ineffective assistance of counsel. To
successfully assert an ineffective assistance of counsel challenge, an appellant must show that (1)
counsel’s representation fell below an objective standard of reasonableness, and (2) the deficient
performance prejudiced the defendant. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim.
App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). An ineffective
assistance claim must be “firmly founded in the record,” and the record must “affirmatively
demonstrate” the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005). Appellate review of defense counsel’s representation is highly deferential and presumes
that counsel’s actions fell within the wide range of reasonable and professional assistance. Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Usually, the record on direct appeal will
not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical
or strategic decision making as to overcome the presumption of effective assistance. Id.
Appellant asserts his trial counsel was ineffective because trial counsel (1) advised him to
plead guilty and then elicited testimony that he did not know what was in the backpack, (2) failed
to move for a mistrial when the trial court withdrew his guilty pleas, (3) failed to object to the
jury charge, and (4) failed to move to strike appellant’s written pleas of guilty.
Appellant did not file a motion for new trial, and the record does not otherwise support
appellant’s claims of ineffective assistance. Specifically, the record does not show what advice
trial counsel gave appellant regarding his pleas or his decision to testify. Nor does the record
provide counsel’s reasons for any of the complained-of actions. We cannot conclude on this
record that there was no reasonable basis in strategy or tactics for the complained-of actions.
–4– Further, appellant has cited no authority showing the trial court would have erred in overruling
any of the objections he now asserts counsel should have lodged or to show a mistrial was
required. To show counsel was ineffective for failing to make an objection an appellant must
show the trial court would have erred in overruling the objection. Vaughn v. State, 931 S.W.2d
564, 567 (Tex. Crim. App. 1996); Brennan v. State, 334 S.W.3d 64, 74 (Tex. App.—Dallas
2009, no pet.). Likewise, to show counsel was ineffective for failing to request a jury
instruction, an appellant must show he was entitled to the instruction. See Cardenas, 30 S.W.3d
at 392. We conclude appellant has failed to show his trial counsel was ineffective. We resolve
the third issue against appellant and affirm the trial court’s judgment.
/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE
Do Not Publish TEX. R. APP. P. 47
121348F.U05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JAMES MARQUETTE BRADLEY, On Appeal from the 382nd Judicial District Appellant Court, Rockwall County, Texas Trial Court Cause No. 2-12-256. No. 05-12-01348-CR V. Opinion delivered by Justice O'Neill. Justices Lang-Miers and Evans participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 15th day of April, 2014.
–6–