Lori Ann Athey v. State

• Court: Court of Appeals of Texas
• Decided: August 23, 2007
• Docket: 13-06-00129-CR
• Status: Published

Opinion

NUMBER 13-06-129-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LORI ANN ATHEY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of Aransas County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Justice Benavides

Appellant, Lori Athey ("Lori"), was charged with possession of methamphetamine (one to four grams) with intent to deliver, a second degree felony. TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6); 481.112(b) (Vernon 2001 & Supp. 2006). At a bench trial, she was tried and convicted of the lesser included offense of possession of methamphetamine (one to four grams), a third degree felony. Id. § 481.115(c) (Vernon 2003). Lori was sentenced to four years' imprisonment in the Texas Department of Corrections, Institutional Division, probated for four years, and a $1,500.00 fine.

On appeal, Lori raises four issues: (1) the trial court erred by denying her request to suppress evidence, (2) the evidence was factually and legally insufficient to support her conviction, (3) the trial court erred by denying her request to sever her case from her co-defendant's case, and (4) she received ineffective assistance of counsel. We affirm.

I. Background

On April 29, 2006, a search warrant was executed at 131 Kelly Lane in Aransas County. The search warrant indicates that Patrick Shane Athey ("Patrick"), Lori's husband, was the suspected party in control of the property to be searched. The search warrant was issued by a magistrate after a finding of probable cause, which was supported by an affidavit from Rusty Young, a narcotics investigator for Tri-County Narcotics Task Force. According to the probable cause affidavit, Young is an experienced narcotics officer. The affidavit states that he has been a peace officer since 1993 and a narcotics investigation officer for the past six years. It states that Young has "participated and assisted in joint investigations with law enforcement agents of the Texas Department of Public Safety Narcotics Service and other law enforcement agencies in their investigations of individuals who traffic in illegal controlled substances."

Within the twenty-four hours prior to his signing of the affidavit, Young received information from a confidential informant regarding Patrick's possession of methamphetamine. The informant asserted that he had observed Patrick in possession of a quantity of methamphetamine at the "suspected place," which the affidavit described as follows:

The suspected place is located at 131 Kelly Lane in Aransas County, Texas. The suspected place is a single story wood frame residential dwelling brown in color with a metal roof. The suspected place displays the address "131" on the front of the residence to the left of the front door as seen from Kelly. The suspected place has a chain link fence around the front of the residence and an air conditioning unit in a window to the left of the front door as seen from Kelly. The suspected place has a metal building in the rear of the residence. The suspected place has a driveway to the right of the residence as seen from Kelly. There is a child swing set in the front yard near the fence. This warrant includes all other buildings, structures, and vehicles on said premises belonging to or under the control of the suspected party and other individuals found at the suspected place who are in control of the suspected place and/or engaged in the illegal activities set out herein. (emphasis added).

Although Young had not received information from this particular informant in the past, the affidavit stated that Young had previously worked with confidential informants, was familiar with undercover surveillance techniques, and was familiar with the utilization of innovative investigative techniques.

The affidavit states that Young took the informant to the "suspected place" to make a controlled buy. Young searched the informant and the informant's car before giving the informant money. Young then observed the informant exit his vehicle and "go directly into the suspected place." The informant returned a short time later with a quantity of methamphetamine. Young's affidavit states that the only place that the informant could have obtained the methamphetamine was from inside the suspected place.

Finally, Young's affidavit sets out how he attempted to verify the informant's reliability. He states that he attempted to identify a possible motive or reason to falsify information against the suspects in possession of illegal substances, but he found none. Young presented the affidavit to a magistrate, who found probable cause and issued a search warrant. The police then conducted a search of the Atheys' home. Patrick was not found on the premises at that time, but Lori was present. The police discovered methamphetamine in the garage, which according to the record was a large metal building with an interior room. The police conducted an on-site video interrogation of Lori.

Lori and Patrick were charged with possession of methamphetamine (one to four grams) with intent to deliver, a second degree felony. TEX. HEALTH & SAFETY CODE ANN. § 481.112(b). Before trial, Lori's counsel filed a motion to suppress all evidence obtained as a result of the purportedly illegal search. The motion stated that the probable cause affidavit contained misrepresentations of fact: "The search and seizure were made in reliance on a search warrant. The affidavit in support of the warrant contains intentional or negligent misrepresentations of fact which would tend to mislead the issuing magistrate. But for these misrepresentations, there is no probable cause to issue a warrant." The trial court held a hearing on the motion to suppress on December 1, 2006.

Young testified at the suppression hearing. Lori's counsel questioned Young about what he considered the "suspected place" when he signed the probable cause affidavit. Lori's counsel pointed out that the affidavit says that the "suspected place" has a metal building to the rear-not that the metal building to the rear is the suspected place. Young, however, asserted that the affidavit was truly referring to the entirety of the property as the suspected place, including the metal building. Young testified that he saw the informant go into the back building of the residence.

During cross-examination, Young testified that he ran a criminal history search on his informant and that the search did not show any indictment or warrant. Lori's counsel asked Young to identify his informant, claiming that the informant had a criminal history. The trial court, however, sustained the State's objection to this question. Lori's attorney stated that if Young had been able to answer the question, he would have stated the informant's name and that name would match criminal history records introduced later by Lori's counsel. Although Lori's counsel offered the criminal records into evidence, Young never confirmed the informant's name.

Russell Kirk also testified at the hearing. He was the assistant commander of the Tri-County Narcotics division, who executed the search warrant. He testified that upon executing the warrant, he encountered Lori at the residence. He stated that he advised Lori of her Miranda warnings. Then he described the video tape of the interview, and he stated that the video was a true and correct copy of the interview, made by reliable equipment. The video was played for the court.

According to the video, the interviewing officer read Lori her Miranda warnings, and she waived her right to counsel. Lori indicated that she lived at the residence with her husband, Patrick. She told the police that there might be narcotics out in the garage, but she did not know. In response to the question why she believed drugs were in the garage, she said, "if there was any drugs anywhere, that's where'd they be."

Lori indicated that both she and her husband used methamphetamine. Lori further indicated that she had used methamphetamine within the past two days and that she used the drug "every once in a while." Lori stated, however, that she did not use the methamphetamine in the house. In response to the final question of whether or not she had knowledge that her husband had methamphetamine in the garage, she said, "I suspected he might." After hearing the testimony and watching the video, the trial court denied the motion to suppress.

Lori and Patrick were set for a non-jury trial as co-defendants with the same trial counsel. Before trial, Lori's counsel moved to sever her case from Patrick's case, asserting that she would be prejudiced because there would be certain evidence admissible against Patrick that was inadmissible against her. The trial court denied the motion. Trial counsel received assurances from the judge that he would consider evidence against each co-defendant separately. Trial counsel further noted to the judge that he would make proper objections as to the inadmissibility of evidence as to one co-defendant or the other.

A non-jury trial commenced on January 5, 2006. The State offered seventeen exhibits, fourteen of which were photographs of the property, the narcotics, and a phone bill indicating that Patrick lived at the residence. One photograph showed methamphetamine on a workbench in the garage. Exhibit fifteen was the video interrogation of Lori. Exhibit sixteen was a plastic bag containing the contraband, and exhibit seventeen was a lab report indicating that the contraband found at the scene was indeed methamphetamine.

Three police officers testified on behalf of the State. All indicated that the narcotics in question were found in the garage, not in the residence where Lori was found. Neither Lori nor Patrick testified. Defense counsel rested without calling any witnesses. On the same date, January 5, 2006, the trial judge found Lori guilty of the lesser included offense of possession of methamphetamine (one to four grams), a third degree felony. TEX. HEALTH & SAFETY CODE ANN. § 481.115(c). The trial judge certified Lori's right to appeal on February 16, 2006. She filed a timely notice of appeal on March 15, 2006. Tex. R. App. P. 26.2(a)(1). ⁽¹⁾

II. Suppression of Evidence

By Lori's second issue, she contends the trial court erred in failing to grant her motion to suppress evidence obtained as a result of a search warrant issued purportedly in violation of the requirements of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 18.01 (Vernon 2007). Specifically, she alleges that the affidavit underlying the search warrant did not set forth sufficient facts to establish probable cause and that Young intentionally, knowingly, or recklessly misrepresented facts in the affidavit. See id. art. 18.01(b), (c); Franks v. Delaware, 438 U.S. 154, 155-56, 171-72 (1978). Accordingly, any evidence obtained based on the warrant should have been excluded. We disagree.

A. Standard of Review and Applicable Law

Generally, the appropriate standard for reviewing a trial court's ruling on a motion to suppress is a bifurcated standard of review, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the court's application of the law. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)); Odom v. State, 200 S.W.3d 333, 335 (Tex. App.-Corpus Christi 2006, no pet.). However, as the Texas Court of Criminal Appeals recently reaffirmed, our jurisprudence recognizes a "constitutional preference for the warrant process in which police officers present their facts to a neutral magistrate to decide if there is probable cause to issue that warrant." Rodriguez v. State, No. PD-1013-06, 2007 Tex. Crim. App. LEXIS 624, at *5 (Tex. Crim. App. May 9, 2007); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Rather than applying a de novo review of a magistrate's probable cause finding, which is a question of law, we must pay great deference to a magistrate's finding of probable cause "to encourage police officers to use the warrant process rather than making a warrantless search and later attempting to justify their actions by invoking some exception to the warrant requirement." Rodriguez, 2007 Tex. Crim. App. LEXIS 624, at *7.

Accordingly, to determine the legal adequacy of a probable cause affidavit, we look within the affidavit's four corners. Id. at *12 & n.25; Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992); Oubre v. State, 542 S.W.2d 875, 877 (Tex. Crim. App. 1976). A reviewing court's inquiry, therefore, is the same as the magistrate's: does the affidavit contain "sufficient facts, coupled with inferences from those facts, to establish a 'fair probability' that evidence of a particular crime will likely be found at a given location?" Rodriguez, 2007 Tex. Crim. App. LEXIS 624, at *15.

Despite the "four corners" rule, a defendant may go behind the affidavit and attack the veracity of the officer's affidavit in support of a search warrant if certain procedures are followed. Franks, 438 U.S. at 155-56, 171-72. In Franks v. Delaware, the United States Supreme Court held that if a defendant establishes by a preponderance of the evidence that the officer knowingly, intentionally, or recklessly misrepresented the facts in the affidavit, and that without the false statement there was insufficient information to support a finding of probable cause, the resulting search warrant must be deemed invalid. Id. However, given the presumption of validity, to be entitled to a hearing questioning the officer's veracity, the defendant must make a "substantial preliminary showing" of the elements set out in Franks. Id.

The Texas Court of Criminal Appeals has made clear that in order to be granted a Franks hearing, a defendant must:

1. Allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false. Allegations of negligence or mistake are insufficient, and the allegations must be more than conclusory;

2. Accompany these allegations with an offer of proof stating the supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished. If not, the absence of written support of the allegations must be satisfactorily explained.

3. Show that when the portion alleged to be false is excised from the affidavit, the remaining content is insufficient to support issuance of the warrant.

Ramsey v. State, 579 S.W.2d 920, 922-23 (Tex. Crim. App. 1979); see also Harris v. State, No. PD-1453-05, 2007 Tex. Crim. App. LEXIS 809, at *5 (Tex. Crim. App. June 20, 2007); Cates v. State, 120 S.W.3d 352, 356 (Tex. Crim. App. 2003). Thus, specific allegations and evidence must be apparent in the pleadings in order for a trial court to even entertain a Franks proceeding. Harris, 2007 Tex. Crim. App. LEXIS 809, at *5. "[T]he challenger's attacks must be more than conclusory and must be supported by more than a mere desire to cross-examine." Franks, 438 U.S. at 171.

B. Analysis

Lori alleges that the information stated in the affidavit was insufficient to support a finding of probable cause and that Young misrepresented facts in his warrant affidavit. We address these arguments in turn.

1. Sufficiency within the four corners

A magistrate issuing a search warrant must make a practical, common sense decision whether, under the circumstances set forth in the supporting affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Rodriguez, 2007 Tex. Crim. App. LEXIS 624, at *8-15; Trevino v. State, 875 S.W.2d 373, 375 (Tex. App.-Corpus Christi 1994, no pet.) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also Davis v. State, 27 S.W.3d 664, 667 (Tex. App.-Waco 2000, pet. ref'd). Whether a "fair probability" exists under the totality of the circumstances is a "flexible and nondemanding" standard. Rodriguez, 2007 Tex. Crim. App. LEXIS 624, at *9. The magistrate can make reasonable inferences from the facts presented. Id. at *12-13; Trevino, 875 S.W.2d at 376; Zule v. State, 802 S.W.2d 28, 32 (Tex. App.-Corpus Christi 1990, no pet.). A hypertechnical analysis of the affidavit should be avoided. Rodriguez, 2007 Tex. Crim. App. LEXIS 624, at *7.

Probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge. Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996) (citing Gates, 438 U.S. at 156)); Ashcraft v. State, 934 S.W.2d 727, 733 (Tex. App.-Corpus Christi 1996, pet. ref'd). When an officer's probable cause affidavit relies on an informant, the informant's reliability and the basis of his or her knowledge is relevant to the probable cause determination. Gates, 462 U.S. at 230; Ashcraft, 934 S.W.2d at 733. Corroboration of the informant's information through independent investigation is also relevant. Gates, 462 U.S. at 241-42. Additionally, the affidavit should set out the officer's belief in the informant's credibility and veracity. Id. But "a deficiency in one may be compensated . . . by a strong showing as to the other, or by some indicia of reliability," all of which are relevant. Id. at 233; Ashcraft, 934 S.W.2d at 733 ("[T]he police may corroborate informant hearsay by their own surveillance.").

We recognize that the confidential informant's initial report that he had observed Patrick in possession of methamphetamine is, by itself, not enough to support the warrant. Harris v. State, 184 S.W.3d 801, 812 (Tex. App.-Fort Worth 2006), rev'd on other grounds, 2007 Tex. Crim. App. LEXIS 809 (Tex. Crim. App. June 20, 2007). Young's affidavit clearly states that the informant had never provided information to him in the past. See Ashcraft, 934 S.W.2d at 733. Accordingly, some corroboration was required.

Courts have found "controlled buys" and police verification of the events taking place before and after the "controlled buy" to be sufficient corroboration of an informant's report to support a probable cause affidavit, so long as the officers have either witnessed the transaction itself or have seen the informant "enter the door of the specific house or apartment and come out with the drugs." See Harris, 184 S.W.3d at 813 (citing Richardson v. State, 622 S.W.2d 852, 856 (Tex. Crim. App. 1981)). In Richardson, for example, the officer testified that he was an eyewitness to the events immediately preceding and directly after the informant's drug purchase at the defendant's home. Richardson, 622 S.W.2d at 856. The court of criminal appeals found that testimony sufficient to establish probable cause. Id.

The affidavit, executed by Young, an experienced narcotics investigator, stated that the confidential informant told Young that he had seen methamphetamine at the residence in question within the last twenty-four hours. Attempting to corroborate this information, Young arranged a controlled buy. Young searched the informant and his vehicle before the informant entered the residence to make the purchase. Young stated that he witnessed the informant enter the suspected place, and after the informant was inside for a short time, he witnessed the informant returned with a quantity of methamphetamine. Under Richardson, we believe this was sufficient information within the four corners of the affidavit to corroborate the informant's report and support a finding of probable cause. Id.

Lori refers this Court to our decision in Dees v. State, 722 S.W.2d 209, 214-15 (Tex. App.-Corpus Christi 1986, pet. ref'd), where we held that an affidavit in support of a search warrant was insufficient because the affidavit contained no information about the reliability of the informant nor did it contain any facts concerning the drug purchase in question. The facts of Dees are distinguishable from the instant case. In Dees, the basis in the affidavit for probable cause consisted of a single sentence, which lacked facts but contained numerous conclusory statements. Id. at 215. The affidavit in support of the search warrant in the instant case has numerous corroborated facts about the contraband in question, and the reliability of the informant was bolstered by the "controlled buy." See id. Accordingly, Dees does not control our disposition, and we find that the affidavit was sufficient within its four corners.

2. Franks violations

Second, Lori contends that the affidavit contained intentional or reckless misrepresentations because (1) Young's affidavit stated that he attempted to verify the informant's credibility, when in fact, the informant had been indicted just days before the search; and (2) Young's affidavit misrepresented that he had seen the informant enter the residence, when in fact, Young admitted at the hearing that he saw the informant enter the garage. These issues, however, were not preserved for our review because Lori failed to follow the requirements set out in Franks. Harris, 2007 Tex. Crim. App. LEXIS 809, at *5-7.

Here, the only arguable reference to a Franks hearing in the original motion to suppress is as follows: "The search and seizure were made in reliance on a search warrant. The affidavit in support of the warrant contains intentional or negligent misrepresentations of fact which would tend to mislead the issuing magistrate. But for these misrepresentations, there is no probable cause to issue a warrant." Lori's motion to suppress failed to direct the trial court to the portions of the affidavit she alleged constituted misrepresentations. Additionally, she failed to provide an offer of proof to contradict any such alleged falsehoods.

In Harris, under nearly identical facts, the Texas Court of Criminal Appeals held that the defendant had waived his right to attack the veracity of the warrant affidavit, and nothing was presented for review. Id. We likewise find that Lori failed to establish her entitlement to a Franks hearing.

Nevertheless, no evidence was presented at the motion to suppress hearing to establish a violation under Franks. Lori cites to Harris, arguing that Young misrepresented the fact that he saw the informant enter the garage, where the contraband was later discovered. Harris, 184 S.W.3d at 808. In Harris, the officer's affidavit stated that he saw the informant enter a specific apartment, which was the subject of a later search warrant. Id. At the hearing on the motion to suppress, however, the officer testified that a breezeway connected four separate apartments, including the suspected apartment. Id. at 812. The officer testified that he was only able to see the informant until he entered the breezeway-he could not confirm that the informant in fact entered the specific, suspected apartment. Id. The court of appeals found that this statement directly contradicted his affidavit. Id. Finding this to be a significant misstatement, the court of appeals refused to consider the controlled buy as support for the warrant. Id. ⁽²⁾

In this case, however, Young's affidavit and his testimony at the suppression hearing are not inconsistent. The affidavit describes the subject property as including all the buildings surrounding the house, which would include the garage. Young testified at the hearing that he saw the informant enter the back building of the residence and that in his affidavit, he intended the "suspected place" to include all the buildings associated with the residence. Lori's comparison of the affidavit with Young's testimony is hypertechnical, and we will not second guess the magistrate's decision based on such a technical reading. See Rodriguez, 2007 Tex. Crim. App. LEXIS 809, at *7. Accordingly, we find that the controlled buy in this case was sufficient to support the magistrate's finding of probable cause.

Additionally, Lori contends that Young's affidavit misrepresented that he had verified the informant's reliability. Lori contends that the informant was under indictment, and at the hearing, she submitted criminal history records relating to the person she alleges was the informant. However, Lori never established the informant's identity at the hearing-the trial court refused to require Young to reveal the informant because Lori did not file a motion to reveal the informant's identity. See Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991). Accordingly, Lori presented no evidence that Young should have discovered the criminal history of his informant.

Moreover, Young testified at the hearing that he ran a criminal background check to determine any current indictments or warrants out on the informant, and he found none. If a statement only evidences the police's mere negligence in checking or recording facts relevant to a probable cause determination, then it is beyond the scope of Franks. Long v. State, 137 S.W.3d 726, 729 (Tex. App.-Waco 2004, pet. ref'd) (quoting Franks, 438 U.S. at 170). There is nothing to suggest that Young intentionally or recklessly disregarded the alleged informant's criminal background. We conclude that the magistrate had a substantial basis for concluding that a search warrant would uncover evidence of wrongdoing. Lori's second issue is overruled.

III. Legal and Factual Sufficiency

By Lori's first issue, she contends the evidence was legally and factually insufficient to sustain a conviction for possession of methamphetamine. Specifically, Lori asserts that the state failed to provide sufficient evidence to prove two elements of the crime: possession, as defined by law, and knowledge. We disagree.

A. Standard of Review

In a legal sufficiency review, we consider 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Clayton v. State, 169 S.W.3d 254, 257 (Tex. App.-Corpus Christi 2005, pet. granted). The standard of review is applicable in both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Chambers v. State, 711 S.W.2d 240, 244 (Tex. Crim. App. 1986). We are not fact finders, but a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

In a factual sufficiency review, we view the evidence in a neutral light and will set aside a verdict only if (1) the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust, or (2) if the verdict is against the great weight and preponderance of the evidence. Berry v. State, AP-74,913, 2007 Tex. Crim. App. LEXIS 651, at *10 (Tex. Crim. App. May 23, 2007) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2003)). "[E]vidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or [if] considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence." Id. at *11 (citing Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006)). "A clearly wrong or unjust verdict occurs when the jury's verdict is manifestly unjust, shocks the conscience, or clearly demonstrates bias." Id.

B. Applicable law

Possession is defined as "actual care, custody, control or management." Tex. Penal Code Ann. § 1.07(a)(39) (Vernon 2003). In possession of controlled substance cases, the State must show that the accused (1) exercised actual care, control, or custody of the substance, (2) was conscious of her connection with it, and (3) possessed the substance knowingly or intentionally. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Stroman v. State, 69 S.W.3d 325, 328 (Tex. App.-Texarkana 2002, pet. ref'd); Jones v. State, 963 S.W.2d 826, 830 (Tex. App.-Texarkana 1998, pet. ref'd).

Because Lori was not in exclusive possession of the place where the contraband was found, it cannot be concluded that she had knowledge or control over the contraband unless there are additional independent facts and circumstances affirmatively linking her to the contraband. Gregory v. State, 159 S.W.3d 254, 259 (Tex. App.-Beaumont 2005, pet. ref'd); see also Brown, 911 S.W.2d at 748. Evidence affirmatively linking the accused to the contraband will suffice for proof that she possessed it knowingly. Gregory, 159 S.W.3d at 259; see also Wootton v. State, 132 S.W.3d 80, 86-87 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd).

We must keep in mind that the "affirmative link rule" is designed to "protect the innocent bystander from conviction based solely upon her fortuitous proximity to someone else's drugs." Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (citing United States v. Phillips, 496 F.2d 1395, 1397 (5th Cir. 1974)). It is common sense that a person--such as a family member, roommate, or friend--may jointly possess property without necessarily possessing the contraband found in the house. Id. ⁽³⁾

No one besides the Atheys lived in the house. The photographic evidence introduced by the State indicated that the methamphetamine was within the garage on the premises where the Atheys lived with their children. The evidence at trial demonstrated that drug paraphrenalia, such as a pipe and lighters, were in plain view on a desk in the garage. The photos admitted at trial further demonstrate that the methamphetamine were within plain view in the garage-a plastic bag containing methamphetamine was visible on a shelf in the garage. Additionally, the various incriminating statements made by Lori include the fact that (1) she had used methamphetamine within the past two days, and (2) she had used methamphetamine on occasion in the past. Moreover, Lori indicated to the police both that she suspected methamphetamine was on the premises and knew where it was most likely to be located.

Examining the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Lori knowingly possessed a controlled substance. Accordingly, we hold that the evidence is legally sufficient to support the verdict. See Jackson, 443 U.S. at 319; see also Vodochodsky, 158 S.W.3d at 509. Additionally, our review of the record as a whole, with consideration given to all of the evidence does not reveal any evidence that would cause us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Lori's conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury's verdict. We overrule Lori's first issue.

IV. Severance

By Lori's third issue, she asserts that the trial court committed reversible error when it denied Lori's motion to sever her from the co-defendant at trial. The code of criminal procedure provides for when a trial court must sever co-defendants' trials:

Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 2007). "Absent evidence of prejudice to one defendant in a joint trial, or evidence that one of the defendants has a prior admissible conviction, a motion for severance is left to the to the trial court's discretion." King v. State, 17 S.W.3d 7, 16-17 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd); Patterson v. State, 783 S.W.2d 268, 270 (Tex. App.-Houston [14th Dist.] 1989, pet. ref'd). Severance is not a matter of right but rests within the sound discretion of the trial court. Peterson v. State, 961 S.W.2d 308, 310 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd).

When an accused is not entitled to a severance, the denial of a severance motion by the trial court constitutes an abuse of discretion only when the movant satisfies the heavy burden of showing clear prejudice. Adams v. State, 180 S.W.3d 386, 400 (Tex. App.-Corpus Christi 2005, no pet.). "The mere allegation that prejudice will result is not evidence of, or a sufficient showing of, prejudice under article 36.09, particularly when the severance is discretionary with the trial judge." Id. If the motion to sever is not supported by evidence, the trial court's denial of the motion is not an abuse of discretion. Id.

In her motion to sever, Lori states, without support, that a joint trial will prejudice her. She also asserts, again without support, that there will be evidence that will be admissible against her co-defendant and not against her. Lori has not met the burden of showing clear prejudice. The trial court did not abuse its discretion in overruling Lori's motion for severance. Lori's third issue is overruled.

V. Ineffective Assistance of Counsel

In her final issue, Lori argues that she was denied effective assistance of counsel because her trial counsel had an actual conflict of interest between the retained client, Lori's co-defendant husband, and trial counsel's pro bono client, Lori herself. Specifically, Lori complains that her trial counsel "argued for and was granted the severance, but then asks the trial court to proceed to try the defendants together but separate, presuming the trial court could proceed to try the two defendants together but separately consider the evidence without causing unfair prejudice to appellant." Additionally, Lori argues that her attorney failed point out what evidence could be considered with regard to each co-defendant. Finally, as a catchall, she points to her first three issues as evidence of ineffective assistance of counsel.

We apply the two-pronged Strickland analysis to determine whether counsel's representation was so deficient that it violated a defendant's constitutional right to effective assistance of counsel. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi 2006, no pet.); see Strickland v. Washington, 466 U.S. 668, 684 (1984). An appellant claiming a Strickland violation must establish that (1) "his attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different." Jaynes, 216 S.W.3d at 851; see Strickland, 466 U.S. at 687.

We afford great deference to trial counsel's ability--"an appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Jaynes, 216 S.W.3d at 851. The appellant must prove both elements of the Strickland test by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.-Corpus Christi 2000, no pet.).

The record must affirmatively show the allegedly deficient acts or omissions. Jaynes, 216 S.W.3d at 851. The Texas Court of Criminal Appeals has held that in most direct appeals, a silent record that provides no explanation for counsel's conduct will be insufficient to overcome the presumption of reasonableness. Goodspeed, 187 S.W.3d at 392. It is "critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic." Batiste v. State, 217 S.W.3d 74, 83 (Tex. App.-Houston [1st Dist.] Oct. 12, 2006, no pet.); Green v. State, 191 S.W.3d 888, 894-95 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd).

An appropriate record, which should include counsel's reasons for his actions, is usually prepared at a hearing on a motion for new trial or developed by a writ of habeas corpus. Batiste, 217 S.W.3d at 83. "'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Goodspeed, 187 S.W.3d at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). Absent an opportunity for the attorney to explain his actions, an appellate court should not "find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

First, Lori's contention that her counsel was granted a severance, but then waived the right to a separate trial, is not supported by the record. Nowhere does the record indicate that the trial court ever granted a severance. Thus, we reject her first that her counsel waived a severance previously granted by the trial court.

Second, Lori did not file a motion for new trial, and there is no affidavit from appellant's trial counsel explaining his actions. Lori does not refer us to any evidence in the record demonstrating counsel's reasons for failing to object to testimony on Lori's behalf, nor does she explaining her trial counsel's actions at and prior to the suppression hearing. We cannot say, on this record and without any explanation from counsel, that counsel's failure to preserve his objections was not trial strategy. Goodspeed, 187 S.W.3d at 393-94 (recognizing possible trial strategies and refusing to find ineffective assistance of counsel without allowing counsel to respond); McBean v. State, 167 S.W.3d 334, 341 (Tex. App.-Amarillo 2004, pet. ref'd) (holding that appellant failed his burden by failing to reference evidence of reasons for counsel's conduct). Given the lack of evidence of trial counsel's true intentions, we are required to reject Lori's claim of ineffective assistance of counsel. Goodspeed, 187 S.W.3d at 393-94. Because we find that Lori has not satisfied the first element of Strickland, we need not determine whether the result would have been different. Tex. R. App. P. 47.1. We overrule Lori's fourth issue.

V. Conclusion

For the above given reasons, the judgment of the trial court is AFFIRMED.

__________________________

GINA M. BENAVIDES

Justice

Do not publish.

See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 23rd day of August, 2007.

1. Patrick was found not guilty.

2. We note that the court of appeals decision in Harris was reversed by the Court of Criminal Appeals for failure to preserve the Franks issue, and the Court of Criminal Appeals did not reach the merits of the Franks argument. Harris, 2007 Tex. Crim. App. LEXIS 809, at *5-7.

3. This Court has listed the factors that may be considered when determining whether the evidence is sufficient to affirmatively link an accused person to a controlled substance: (1) the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or the place where the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gesture; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances. Laissant v. State, 79 S.W.3d 736, 743 (Tex. App.-Corpus Christi 2002, no pet.). The number of factors is not as important as their logical force in establishing the elements of the offense. See Jenkins v. State, 76 S.W.3d 709, 713 (Tex. App.-Corpus Christi 2002, pet. ref'd). "The baseline is that proof amounting to a strong suspicion or even a possibility of guilt will not suffice." In re J.M.C.D., 190 S.W.3d 779, 780 (Tex. App.-El Paso 2006, no pet.).