Jose Pablo Senteno v. State

• Court: Court of Appeals of Texas
• Decided: October 28, 1999
• Docket: 03-99-00195-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-99-00195-CR Jose Pablo Senteno, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 98-4966, HONORABLE BOB PERKINS, JUDGE PRESIDING

After a trial to the court, the district court convicted Jose Pablo Senteno of possession of a controlled substance and assessed sentence at eight years in prison. Senteno challenges the legal and factual sufficiency of the evidence to support the judgment. He also asserts that he was denied effective assistance of counsel. We will affirm the judgment.

BACKGROUND

The testimony in this case came from Austin police officers and Senteno's sometime girlfriend.

Austin police officer Raul Ortegon testified that he learned from a confidential informant that a man named Pablo was cutting up a large amount of crack cocaine in apartment 207 in London Square Apartments. He reported the information to the narcotics division and Austin police officer Robert Hester. Ortegon then went to the apartment complex to speak to Michael Barron and Jose Garcia about their possible involvement in a narcotics transaction. Ortegon had previously arrested Barron for possession of drug paraphernalia containing crack cocaine, and arrested him this time on outstanding warrants. Ortegon searched Garcia's truck, discovered a crack pipe, and arrested Garcia.

Another officer brought appellant over to Garcia's truck. Garcia told Ortegon that appellant, his uncle, lived in apartment 207. At some point, appellant told officers they could search the place, but then decided he did not want them to search it. Appellant denied living in the apartment or anywhere in particular. The apartment manager, however, said that appellant had been living in the apartment illegally. She said the woman who rented the apartment had abandoned it several months before. The apartment manager let Ortegon into the apartment, where he found a cookie of crack cocaine.

Meanwhile, after receiving Ortegon's initial report, Officer Hester arranged to meet Gabriella Nanos, appellant's girlfriend. Nanos had been giving Hester information. Appellant brought Nanos to the meeting; other officers spoke with appellant. Hester said that Nanos told him she had been living in apartment 207, though she was not the renter. She said that appellant, too, was not the renter but was staying in the apartment.

Hester said that the other officers told him appellant agreed to let them search the apartment. When they got to the apartment complex, however, people there began talking to appellant in Spanish. Hester did not understand what was said, but thereafter appellant withdrew his agreement to let them search, saying that the apartment was not his.

Hester said Nanos denied having a key. She told him she just left the door open. Neither Ortegon nor Hester recalled finding an apartment key on appellant.

Hester said the apartment manager wanted to check on the apartment because non-renters were using it. When the manager opened the door using her master key, Hester saw drug paraphernalia on the coffee table; he found more between and under the sofa seat cushions. In a bedroom, Hester found appellant's Mexican identification card and Travis County Probation Department appointment slip. Hester also found a small amount of marihuana. He found letters sent to Nanos and appellant at a different address; that was consistent with information that they had recently moved to apartment 207. Boxes of belongings in the apartment comported with the information that the move was recent. Hester did not check to see if the men's clothes found in the apartment were appellant's size.

Austin police officer Robert Bowers was working with Hester on the investigation. He testified that he had staked out the apartment complex when Hester set up the meeting with Nanos. They saw Nanos and appellant leave the complex together (though they did not see from which apartment they came). At the meeting site, while Hester talked to Nanos, Bowers talked to appellant. Bowers said that Nanos told Hester that, though appellant had been dealing crack, he was not at that time.

Nanos testified that she had lived in apartment 207 for about two weeks following her release from jail. She testified that as many as 20 people would stay in the apartment. She described it as a flophouse, a crackhouse, and a place for homeless prostitutes to stay. She said that appellant was not living there, but had visited her occasionally. At first she said that none of his belongings were in the apartment, but then acknowledged that she still had some of his things from when they lived together; this included his Mexican voter card, which she kept because she liked the picture, and some of his jewelry that she liked to wear. She said he might have contributed to the group payment of the utility bills. She said that she, not appellant, was buying the big crack cookie from a man named Flaco. She said Pablo did not know she had the cocaine.

DISCUSSION

Senteno raises three points of error. He challenges the legal and factual sufficiency of the evidence to support the conviction. He also contends that his trial counsel was ineffective.

When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution 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, 318-19 (1979). When reviewing the factual sufficiency of the evidence, we view the evidence in a balanced fashion and can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

In order to establish the unlawful possession of a controlled substance, the State must prove (1) that the accused exercised care, control, and management over the contraband, and, (2) that the accused knew the substance possessed was a controlled substance. Pierce v. State, 577 S.W.2d 253, 254 (Tex. Crim. App. 1979). If, as in this case, the defendant did not exclusively control the place where the contraband was found, additional facts and circumstances must affirmatively link him to the contraband in a way that indicates he knew about the contraband and exercised control over it. See Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd) (compiling list of fourteen affirmative links). ⁽¹⁾

Viewing the evidence in the light most favorable to the judgment, we find legally sufficient evidence supports the conclusion that Senteno possessed the crack cocaine. The crack cocaine and paraphernalia were in plain view in the apartment. Senteno was one of two chief occupants of the apartment: his voter identification card was in a bedroom, and he felt entitled to deny consent to the police search. Also, the informant said Senteno was cutting up the crack cookie. Because legally sufficient evidence supports the judgment, we overrule point one.

The only significant clash in testimony affecting the factual sufficiency of the evidence centered on Senteno's control of the premises. There was testimony that several people used the apartment and that Nanos left it unlocked because she had no key, thus showing a lack of exclusive control. There was testimony that Senteno only visited the apartment and did not have a key. Further, Nanos claimed that she was buying the cookie from another man. This testimony is balanced by the testimony that Senteno lived in the apartment and had earlier that day cut up one of the crack cookies. The factfinder was free to choose either version of the facts. Because factually sufficient evidence supports the judgment, we overrule point two.

By his third point of error, Senteno contends that his trial counsel was ineffective. To evaluate this claim, we first must examine whether counsel's conduct failed to meet an objective standard for reasonable performance and whether that failure deprived the appellant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). There is a strong presumption that counsel provided adequate assistance and made all the significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. Counsel is allowed wide latitude within reasonable professional standards to make tactical decisions. Id., 466 U.S. at 689. We look at the totality of the representation. Ex parte Carillo, 687 S.W.2d 320, 324 (Tex. Crim. App. 1985); Mayhue v. State, 969 S.W.2d 503, 510 (Tex. App.--Austin 1998, no pet.). The representation need not be free of error. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Vasquez v. State, 819 S.W.2d 932, 938 (Tex. App.--Corpus Christi 1991, pet. ref'd). Finally, the client must show a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id.

The burden of showing counsel was ineffective is particularly difficult to carry without some sort of evidentiary hearing dedicated to the issue of counsel's effectiveness. "In most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim." Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); see Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); ⁽²⁾ Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980); Mayhue v. State, 969 S.W.2d at 511; see also Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.--Houston [14th Dist.] 1999, no pet.). The court held in Duffy and reiterated in Oldham that, "where the alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record." Duffy, 607 S.W.2d 513; see also Oldham, 977 S.W.2d at 363. In the 1998 Jackson case, the court of criminal appeals reversed the judgment that counsel was ineffective for failing to file a motion to suppress the only evidence that defendant possessed cocaine; the court of criminal appeals held that defendant's claim failed because he had not proved by a preponderance of the evidence that the cocaine should have been suppressed. Jackson, 973 S.W.2d at 956-57. In the 1994 Jackson case, the court of criminal appeals reversed the judgment that counsel was ineffective for failing to move to strike for cause a jury panelist who said that a recent burglary of his home probably would affect his impartiality in a robbery trial; the court of criminal appeals reversed because the record was silent regarding defense counsel's reason for not moving to strike the panelist. Jackson, 877 S.W.2d at 771.

Senteno complains most about counsel's failure to object to testimony given by several witnesses that he contends was inadmissible as hearsay, speculation, or concerning extraneous offenses:

• Ortegon's testimony that the informant told him that "Pablo" had crack, and Ortegon's statements about items that he believed were recovered in the apartment.

• Bowers's testimony that Hester told him about Ortegon's report of the informant's statement.

• The police officers' testimony that the apartment manager told them about who was staying in the apartment.

• Hester's testimony that another officer told him Senteno consented to a search of the apartment.

Senteno also complains about the speculation or hearsay inherent in Hester's statements that Senteno and Nanos came from apartment 207 to meet the police officers. ⁽³⁾ Senteno also complains that Hester's statements that Nanos said Senteno had dealt drugs previously are both hearsay and inadmissible evidence of extraneous offenses. There is no showing of why trial counsel sat silently during this testimony.

We conclude that the court of criminal appeals has proscribed courts of appeals from finding counsel ineffective based on a record such as this. We do not know why defense counsel did not object. We do not know what responses the State would have made. We do not know how the district court would have ruled. We do not know what steps the State might have taken had the testimony been barred. It is possible, as Senteno argues, that a sustained defense objection to this testimony would have "[decimated], eviscerated, and virtually obliterated" the State's case and that "there can be no rational claim of justification or strategy for counsel's failing to object." It is also possible, however, that the larger context of the case led defense counsel to decide that simply allowing the State to make its case with such testimony was preferable to goading the State into getting other witnesses who could give more damaging testimony. The silent record gives no guidance, and the court of criminal appeals instructs us not to speculate about counsel's motives. See Jackson, 877 S.W.2d at 771; see also Jackson, 973 S.W.2d at 957. This, coupled with the presumption of competence, requires we overrule point three.

Our conclusion in this direct appeal that Senteno did not prove his counsel ineffective does not bar Senteno from raising the issue in a petition for writ of habeas corpus. See Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).

CONCLUSION

Because we have found that legally and factually sufficient evidence support the judgment and that Senteno did not demonstrate that he received ineffective assistance of counsel, we affirm the judgment of the district court.

Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: October 28, 1999

Do Not Publish

1. Factors that we can consider include whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the strong odor of marijuana was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; (13) traces of the contraband were found on the accused; and (14) affirmative statements connect the accused to the contraband. Whitworth, 808 S.W.2d at 569.

2. The Jackson cases involve different defendants. Though both men's trials were in Harris County district courts, the 1998 appellant was Demetrius Jackson and the 1994 case involved Melvin Leon Jackson.

3. Hester testified that he called Nanos at "her apartment," that she had given him apartment 207 as her address, and that Senteno and Nanos "left the apartment together." Senteno contrasts this unfavorably with Bowers's admission that, though he saw Nanos and Senteno leave the complex together, he could not see from which apartment they emerged.

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