                          NUMBER 13-13-00444-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


KEDRICK DARON FLETCHER,                                                   Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 329th District Court
                        of Wharton County, Texas.


                          MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Perkes
                Memorandum Opinion by Justice Rodriguez
      Appellant Kedrick Daron Fletcher challenges his conviction for possession of four

grams or more but less than 200 grams of a controlled substance with intent to deliver, a

first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2010). The

jury returned a guilty verdict.   For enhancement purposes, it found that Fletcher

possessed the substance in a drug-free zone and that he had two prior convictions. See
TEX. PENAL CODE ANN. § 12.42 (West Supp. 2012). The jury sentenced Fletcher to fifty

years in the Institutional Division of the Texas Department of Criminal Justice. By two

issues, Fletcher contends that (1) the trial court erred when it admitted the opinion

testimony of Detective Jason Mican; and (2) alternatively, the admission of this testimony,

even if no objection was made, constituted fundamental structural error and should be

addressed on appeal. By a third issue, Fletcher argues that by not objecting to this lay

opinion testimony, his trial counsel was ineffective. We affirm.

                                           I. BACKGROUND

        Detective Mican, a narcotics task force officer who conducted a raid at a hotel on a

“no-knock” search warrant, testified that he was the first person to enter the hotel room on

the night Fletcher was arrested.1 Detective Mican testified that he hit or “rammed” the

door and yelled, “Search warrant, police, get down, search warrant.”                       According to

Detective Mican, he immediately saw Fletcher who “stood up from the bed and raised his

arms up into the air,” letting go of something in his hand—a bag of marihuana that hit

Detective Mican on the chest and fell to the ground. When he stood, Fletcher was

between the bed and a couch where two other occupants of the room were seated. 2

        Detective Mican described the hotel room. In addition to the hotel furnishings,

there were a number of items on top of the bed, which he identified from pictures that

were admitted as trial exhibits. According to Detective Mican, the following items were

on the bed only inches away from Fletcher:               (1) two pillows; (2) a purse; (3) a box of

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        2
         Detective Mican later identified the two people on the couch as Jeffrey King and Audrey Gebara
and described them as drug users.
                                                     2
“Swisher Sweets,” which he described as cigar-cigarettes; (4) a clear plastic baggie

containing crack cocaine; (5) two clear plastic baggies containing cocaine in its powder

form; (6) a lighter; and (7) baking soda. Detective Mican also identified a glass crack

pipe that was found on the couch and a clear plastic bag of marihuana in an open dresser

drawer.

       Detective Mican responded to the State’s questions, as follows:

       Q.     Well, were all three suspects arrested?

       A.     Yes, they were.

       Q.     Were they all arrested for possession of that cocaine?

       A.     Yes, they were.

       Q.     Based on your training and experience and what you saw that night,
              is there any doubt in your mind that all three are responsible and had
              control over that cocaine?

       A.     No doubt.

Fletcher did not object to Detective Mican’s opinion testimony.

                                    II. PRESERVATION

       By his first issue, Fletcher asserts that the trial court erroneously admitted

Detective Mican’s lay opinion testimony because it constituted an impermissible opinion

as to Fletcher’s guilt. Detective Mican testified that three people, including Fletcher, had

responsibility for and possession of cocaine found in the hotel room. Fletcher contends

that Detective Mican’s opinion `constituted an impermissible opinion as to Fletcher’s guilt

and that the trial court admitted that testimony in error.        However, to preserve a

complaint of error relating to the admission of evidence, an appellant must have made a

specific and timely objection to the evidence at trial.     See TEX. R. APP. P. 33.1(a);
                                             3
Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Because Fletcher

failed to make a timely and specific objection to Detective Mican’s lay opinion testimony at

trial, he preserved nothing for our review. We overrule Fletcher’s first issue.

                          III. FUNDAMENTAL STRUCTURAL ERROR

       By his second issue, Fletcher argues, in the alternative, that the trial court’s error

constituted fundamental structural error, and, even without objection, we should address

his appellate issue.     See Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991)

(explaining that only in the case of fundamental or structural error is an unobjected-to

error preserved for appeal); Rey v. State, 897 S.W.2d 333, 344–45 (Tex. Crim. App.

1995) (en banc) (same). However, we conclude below that the trial court did not err in

admitting the complained-of testimony, and, without error, the premise of this argument

fails. We overrule the second issue.

                    IV. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM

       By his third issue, Fletcher argues that his trial counsel provided ineffective

assistance based on his failure to object to Detective Mican’s lay opinion testimony

relating to Fletcher’s possession of the cocaine. The State responds that counsel was

not ineffective for not objecting because the testimony was permissible lay opinion based

on the witness’s perceptions and because it was helpful to the jury to understand his

testimony or to determine a fact issue. We agree with the State.

A. Standard of Review and Applicable Law

       We review ineffective assistance of counsel claims under the two-pronged test

articulated in Strickland v. Washington. 466 U.S. 668, 687 (1984); see Hernandez v.

State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc) (adopting Strickland as
                                             4
applicable standard under Texas Constitution). The first prong of the Strickland test

requires a showing that counsel's performance was deficient; that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed by the Sixth

Amendment. Strickland, 466 U.S. at 687. The second prong of the Strickland test

requires a showing that counsel's deficient performance prejudiced the defense; that

counsel's errors were so serious as to deprive the defendant of a fair trial. Id. “[T]here

is no reason for a court deciding an ineffective assistance claim to approach the inquiry in

the same order or even to address both components of the inquiry if the defendant makes

an insufficient showing on one.” Id. at 697; see Cox v. State, 389 S.W.3d 817, 819 (Tex.

Crim. App. 2012) (concluding that a reviewing court need not consider both prongs of the

Strickland test and can dispose of an ineffectiveness claim if the defendant fails to

demonstrate sufficient prejudice).

         Our review of a claim of ineffective assistance of counsel must be highly

deferential to trial counsel's trial strategies and decisions. Strickland, 466 U.S. at 689.

“To successfully assert that trial counsel's failure to object amounted to ineffective

assistance, the [appellant] must show that the trial judge would have committed error in

overruling such an objection.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.

2011).

         We review a trial court's decision to admit or exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2011).

The trial court does not abuse its discretion unless its determination lies outside the zone

of reasonable disagreement. Id. If the trial court's decision is correct on any theory of

law applicable to the case, we will uphold the decision. De La Paz v. State, 279 S.W.3d
                                             5
336, 344 (Tex. Crim. App. 2009).

B. Discussion

       Regarding the admission of evidence, Fletcher generally cites authority for the

propositions that no witness may voice an opinion as to guilt or innocence, see Boyde v.

State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974), that the intent of the defendant is a

fact question to be determined by the jury from all the facts and circumstances of the

evidence, see Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974), and that

the testimony of any witness regarding state of mind of another is pure speculation and,

therefore, incompetent. See Steve v. State, 614 S.W.2d 137, 139 (Tex. Crim. App.

1981). We find Fletcher's argument unpersuasive.

       Detective Mican’s testimony was based on his observations of what took place

contemporaneously to the offense. When such an opinion is drawn from the witness’s

own experiences or observations, as in this case, it is proper. See Osbourn v. State, 92

S.W.3d 531, 535 (Tex. Crim. App. 2002) (explaining that a witness’s testimony can

include opinions, beliefs, or inferences as long as they are drawn from his or her own

experiences or observations); Fairow v. State, 943 S.W.2d 895, 898–901 (Tex. Crim.

App. 1997) (en banc).      Rule of evidence 701 states that a non-expert “witness'[s]

testimony in the form of opinions or inferences is limited to those opinions or inferences

which are (a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness'[s] testimony or the determination of a fact in issue.” TEX.

R. EVID. 701; see Osbourn, 92 S.W.3d at 535. And rule of evidence 602 provides that

“[a] witness may not testify to a matter unless evidence is introduced sufficient to support

a finding that the witness has personal knowledge of the matter.” TEX. R. Evid. 602.
                                             6
         Detective Mican’s personal knowledge of the matter, including details of his entry

into the hotel room and what he saw upon his entry, formed the basis of his objective

perception of events and his lay opinion testimony regarding the people in the motel

room. See id. at R. 602 & R. 701; Osbourn, 92 S.W.3d at 535. This opinion summed up

his testimony. It was a rational conclusion based on his personal knowledge and was

helpful to the determination of a fact in issue. See TEX. R. EVID. 701; Osbourn, 92

S.W.3d at 535. Because the record supports the trial court’s decision to admit Detective

Mican’s lay opinion testimony under rule 701, a theory of law applicable in this case, we

conclude the trial court did not abuse its discretion by denying any motion to exclude the

testimony.     See Martinez, 327 S.W.3d at 736; De La Paz, 279 S.W.3d at 344.

Accordingly, counsel’s assistance was not deficient for not objecting to admissible

testimony. See Ex parte Martinez, 330 S.W.3d at 901.

         Having concluded that Fletcher did not meet the first prong of Strickland—the

deficient-performance prong, we need not address the second prong—the prejudice

prong.     See Strickland, 466 U.S. at 697; Cox, 389 S.W.3d at 819.           We overrule

Fletcher’s third issue.

                                       V. CONCLUSION

         We affirm the judgment of the trial court.

                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 30th
day of January, 2014.

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