                                 IN THE
                       COURT OF CRIMINAL APPEALS
                               OF TEXAS



JAMES SMITH                          §
                                     §
            Petitioner               §
                                     §                  PD-0405-15
VS                                   §
                                     §
THE STATE OF TEXAS                   §
                                     §
            Appellee                 §


       CORRECTED PETITION FOR DISCRETIONARY REVIEW


                     FROM THE COURT OF APPEALS
                     ELEVENTH DISTRICT OF TEXAS
                          NO. 11-12-00095-CR


                       ORAL ARGUMENT REQUESTED


Submitted by:
Parker & Blizzard, P.L.L.C., 702-C Hickory St., Abilene, Texas 79601, Tel. 325-
676-1000, Fax. 325-455-8842, Jacob Blizzard for Petitioner.




                                         i
                            IDENTITY OF PARTIES

James Smith, Appellant                    State of Texas, Appellee

Appellant’s Appeal Counsel                Appellee’s Trial & Appeal Counsel
Parker & Blizzard, P.L.L.C.               Taylor County District Attorney’s
702-C Hickory St.,                        Office
Abilene, Texas 79601                      300 Oak Street, Suite 300,
Tel. 325-676-1000                         Abilene, Texas 79602
Fax. 325-455-8842                         Tel. (325) 674-1261
Jacob Blizzard for Appellant.             Fax. (325) 674-1306
TBN: 24068558

Appellant’s Trial Counsel
Billy L. “Bill” Fisher
3301 South 3rd St., Suite 107
Abilene, Texas 79603
Tel. (325) 677-8384
Fax. (325) 677-6999
TBN: 07049200
(Deceased)

Trial Court
350th District Court
Taylor County, Texas
Thomas Wheeler Presiding




                                     ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES......................................................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES .....................................................................................v

RECORD REFERENCES .........................................................................................1

PARTY REFERENCES ............................................................................................1

STATEMENT OF THE CASE ..................................................................................2

STATEMENT OF PROCEDURAL HISTORY........................................................3

STATEMENT REGARDING ORAL ARGUMENT ...............................................4

I. FIRST GROUND FOR REVIEW .......................................................................4

  A. REASONS FOR REVIEW...............................................................................4

  B. ARGUMENT: ..................................................................................................5

       1. Failure to request limiting instruction could not be sound trial strategy ......5
       2. The Court of Appeals analysis of Petitioner’s ineffective assistance of
       counsel claim improperly concluded opening the door to Petitioner’s prior
       criminal history does not undermine the reliability of the trial ...........................8
II. SECOND GROUND FOR REVIEW ................................................................10

  A. REASONS FOR REVIEW.............................................................................10

  B. ARGUMENT: ................................................................................................11

       1.    The Court of Appeal’s opinion is in opposition with Hooper’s prohibition
       against speculation .............................................................................................11
III.     PRAYER ........................................................................................................14

CERTIFICATE OF SERVICE ................................................................................15

CERTIFICATE OF COMPLIANCE .......................................................................15

                                                            iii
APPENDIX ..............................................................................................................16




                                                           iv
                                     TABLE OF AUTHORITIES

Texas Cases

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994)........................................9

Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) ......................................5

Ex parte Varelas, 45 S.W.3d 20 (Tex. Crim. App. 2001) .........................................5

Garcia v. State, 887 S.W.2d 862 (Tex. Crim. App. 1994) ....................................5, 7

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................ 10, 11, 12

Samaniego v. State, No. 03-01-00718-CR, 2002 WL 1724016 (Tex. App.—Austin
  July 26, 2002, no pet.)...........................................................................................13

Smith v. State, No. 11–12–00095–CR (Tex. App.—Eastland, delivered January 29,
 2015) (not designated for publication) ...................................................................3

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .......................................6

Federal Cases

Strickland v. Washington, 466 U.S. 668 (1984) ............................................. 6, 8, 10

Rules

Texas Rules of Appellate Procedure 66.3(b),(c), and (f) .................................... 4, 10




                                                          v
                            RECORD REFERENCES

      The Clerk’s Record contains one volume and includes all of the pleadings,

orders, and correspondence filed with (or sent to) the trial court and clerk that are

pertinent to this petition. References in this brief to the Clerk’s Record are by page

number, indicated as “CR __.” The Reporter’s Record contains six volumes.

References to the Reporter’s Record are by volume, page number, and line number

(where applicable), indicated as “RR ___:___:___.”

                             PARTY REFERENCES

      James Smith will be referred to as “Petitioner.” The State of Texas will be

referred to as the “State.” Jacob Blizzard, for Petitioner, will be referred to as

“Counsel.” Billy L. “Bill” Fisher, trial counsel for Petitioner, will be referred to as

“Trial Counsel.”




                                          1
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now, Petitioner, and requests the Court to grant the Defendant’s

Petition for Discretionary review, allowing full briefing on the issues, hear oral

argument of the parties, overturn the court of appeals’ decision and the trial court’s

judgment of guilt, and enter a finding of acquittal in favor of Petitioner, or, in the

alternative, remand the case for a new trial on the merits.

                          STATEMENT OF THE CASE

      Petitioner was indicted for the offense of possession of a controlled

substance (Cocaine) in the amount of less than one gram, a State Jail Felony

offense, enhanced to a second degree felony through two prior felony

enhancements. CR 6.

      The case was tried to a jury in the 350th Judicial District Court of Taylor

County, Texas beginning on February 27, 2012. RR 4:4. Petitioner filed an election

for punishment by the jury. CR 44. Petitioner did not testify during the

guilt/innocence phase of the trial, but elected to testify in the punishment phase of

trial. The jury found Petitioner guilty on the sole count of the indictment on

February 28, 2014. RR 5:39. Trial on punishment was conducted before the jury on

February 28, 2014. RR 5:43. The Defendant pled Not True to both enhancement

allegations. RR 5:43. The jury found both enhancement allegations to be True and

assessed punishment at 8 years confinement and no fine. RR 5:86. Petitioner was


                                          2
sentenced on February 28, 2012. RR 5:90. Petitioner filed his motion for new trial

and arrest of judgment on March 2, 2012. CR 64. No hearing was conducted on the

motion, and the motion was denied by order of the Court on March 6, 2012. CR

68. Petitioner filed his notice of appeal on March 2, 2012. CR 66.

                   STATEMENT OF PROCEDURAL HISTORY

         Petitioner’s conviction was affirmed on original submission, Smith v. State,

No. 11–12–00095–CR (Tex. App.—Eastland, delivered January 29, 2015) (not

designated for publication). On February 10, 2015, Petitioner filed a motion to

extend time to file a motion for rehearing. The Court of Appeals granted

Petitioner’s motion and set the deadline to file a motion for rehearing on March 9,

2015. Petitioner filed his motion for rehearing on March 6, 2015. On March 12,

2015, the Court of Appeals denied Petitioner’s motion for rehearing. Petitioner’s

Petition for Discretionary Review was due in this Court by April 10, 2015.

Petitioner filed a motion for extension of time to file Petition for Discretionary

Review. The Court granted Petitioner’s motion and set the deadline for submission

of his Petition for Discretionary Review to May 13, 2015, and it is therefore timely

filed.




                                           3
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner believes that oral argument would assist this Court in explication

and disposition of the issues presented in this petition. Therefore, Petitioner

respectfully requests oral argument.

      I.     FIRST GROUND FOR REVIEW: The Court of Appeals erred by

concluding Petitioner did not satisfy the two-prong Strickland test where (A) Trial

Counsel made an error in failing to request a limiting instruction regarding

extraneous offenses to which Trial Counsel accidentally introduced, and (B) there

is a probability that the result of the proceeding would have been different had

Trial Counsel not opened the door to Petitioner’s criminal history and failed to

request a limiting instruction.

                         A.       REASONS FOR REVIEW

      This Court should review the decision of the Court of Appeals under Texas

Rules of Appellate Procedure 66.3(b),(c), and (f). The issue of ineffective

assistance of counsel is a subject of many criminal appeals and the Court of

Criminal Appeals and United States Supreme Court has spoken on the issue

numerous times. The Court of Appeals has misapplied the precedents of this Court

and the United States Supreme Court to its decision. However, the specific issue of

a trial counsel failing to request a limiting instruction after counsel’s own error has




                                          4
not been directly addressed by this Court in a direct appeal.1 Additionally, the

Court of Appeals’ decision is far departed from the accepted and usual course of

judicial proceedings in relationship to the precedents of the Court of Criminal

Appeals and the United States Supreme Court.

                                  B.     ARGUMENT:
1.     Failure to request limiting instruction could not be sound trial strategy
       The Court of Appeals improperly concluded that Trial Counsel could have

engaged in sound trial strategy by his failure to request a limiting instruction. The

Court of Appeals points to several cases which stand for the proposition that Trial

Counsel can decline to request a limiting instruction with sound discretion.

However, each of the cases cited are situations which were not originally errors

created by Trial Counsel. In Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim.

App. 2007), cited by the Court of Appeals, the evidence offered was same

transaction contextual evidence offered by the State. In Garcia v. State, 887

S.W.2d 862 (Tex. Crim. App. 1994), the evidence was offered by the State and not

objected to by trial counsel. Petitioner does not know of a case where the trial

counsel himself solicited the harmful information in error and then engaged in

sound trial strategy to decline requesting a limiting instruction. The error in and of

itself lacks sound trial strategy. Any action following from Trial Counsel’s original

1
 Although Ex parte Varelas, 45 S.W.3d 20 (Tex. Crim. App. 2001) addresses the issue on writ
of habeas corpus review.


                                              5
error is analogous to “fruit of the poisonous tree,” in that Trial Counsel could not

have engaged in sound trial strategy thereafter because Trial Counsel caused the

problem which he then faced, both of which were harmful. Therefore, any choice

made by Trial Counsel which rises to the level of prejudice under Strickland is

sufficient to warrant a reversal of Petitioner’s conviction. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); Thompson v. State, 9 S.W.3d 808, 812

(Tex. Crim. App. 1999). The prejudice is demonstrated when the petitioner shows

“a probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694.

       Here, had Trial Counsel not opened the door to Petitioner’s criminal

history/extraneous offenses, the jury more likely would have believed Petitioner’s

other defenses raised, the defensive theory that the substance was not cocaine when

seized from Petitioner by police and that it was altered, tampered, or substituted

with cocaine at a later date for testing. However, the Petitioner’s primary defense

was severely diminished by his own counsel, because the jury had no limits and no

guidance on prior arrests which were brought up by his own counsel in error.2

       Trial Counsel’s choice or oversight, failing to request a limiting instruction

did not limit the impact to the jury as was the trial strategy in Garcia, rather here
2
  Trial Counsel’s other errors, not objecting the State’s exhibit 2 based on chain of evidence and
allowing testimony on a field test, contributed to the self-inflicted dismantling of Petitioner’s
defense.


                                                 6
the extraneous offense was discussed at length and the details further hashed out.

See Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994). The Court of

Appeals reasoned that Trial Counsel could have elected not to request the limiting

instruction because he did not want to call attention to it, however, Trial Counsel

went on the discuss the extraneous offenses in more detail. Garcia was specifically

dealing with evidence that was offered by the State, which was not introduced

through the error of Trial Counsel. See id. The decision to not draw attention to

State’s evidence is a reasonable trial strategy, while the decision not to request a

limiting instruction to Trial Counsel’s own error solicited information is not sound

trial strategy.

       Additionally, it could not have been sound trial strategy not to request a

limiting instruction which would have prohibited the jury from considering the

extraneous offenses unless they were proven beyond a reasonable doubt. The jury

would have been prohibited from considering the extraneous offenses because

there was no proof to establish the extraneous offenses were committed beyond a

reasonable doubt. Only the arrests were discussed. RR Vol. 4, Pg. 41 Line 18 – Pg.

43 Line 10, Pg. 56, Lines 22-25, and Pg. 58. In Garcia, Trial Counsel did not

request a limiting instruction which would limit the impact of certain testimony,

but would call attention to it in the jury charge. Here, the result is the opposite.

Trial Counsel’s request for the limiting instruction would have effectively cured

                                         7
most of Trial Counsel’s error. The jury would be instructed to disregard the

evidence because it was not proven beyond a reasonable doubt. Therefore, the

request for a limiting instruction is the only sound strategy which could have been

taken given Trial Counsel’s initial error.


2.    The Court of Appeals analysis of Petitioner’s ineffective assistance of
      counsel claim improperly concluded opening the door to Petitioner’s
      prior criminal history does not undermine the reliability of the trial

      Opening the door to Petitioner’s criminal history created a reasonable

probability that, but for counsel’s error, the result of the proceeding would have

been different. The Court of Appeals, in its opinion acknowledges that Trial

Counsel made a mistake in opening the door to Petitioner’s criminal history,

satisfying the first prong of the Strickland test, but then fails to meaningfully

address the second prong of Strickland to determine that a reasonable probability

exists that, but for counsel’s error, the result of the proceeding would have been

different. See Strickland, 466 U.S. at 687. Petitioner’s trial strategy was

significantly impaired and made to be less believed because Trial Counsel was

alleging a theory which was based upon the fabrication or tampering of evidence.

However, evidence related to prior drug possession and distribution cases was

offered into evidence, and such evidence prejudiced the jury against Petitioner

based on prior unproven conduct. RR Vol. 4, Pg. 58.


                                             8
      Additionally, the Court of Appeals stated that it is essentially plain error to

open the door to the past criminal history, but it is not a plain error to not request

the limiting instruction. The Court of Appeals fails to acknowledge, however, that

the position of being forced to make the supposed strategic decision was created by

the error of counsel. But for Trial Counsel’s mistake, there would be no evidence

of extraneous conduct revealed. Under Abdnor v. State, 871 S.W.2d 726 (Tex.

Crim. App. 1994), some harm is presumed when a properly requested limiting

instruction is not given. The Abdnor Court notes “‘the presence of any harm,

regardless of degree . . . is sufficient to require a reversal of the conviction. Id.

Cases involving preserved charging error will be affirmed only if no harm has

occurred.’ Arline, 721 S.W.2d at 351.” Abdnor, 871 S.W.2d at 732. Further, the

Court states that “We have consistently acknowledged that the introduction of

extraneous offenses to the jury is inherently ‘prejudicial.’” Id. at 738. It cannot be

the state of the law that it is harmful error for a trial court to deny a properly

requested limiting instruction, but not harmful error when trial counsel does not

request the same limiting instruction. While the harm analysis for limiting

instructions and ineffective assistance of counsel claims are different, in this

situation they overlap. The failure to request a limiting instruction is “some harm,”

but then the question comes, is it harm sufficient to establish “a probability that,

but for counsel's unprofessional errors, the result of the proceeding would have


                                          9
been different.” Strickland, 466 U.S. at 694. If it is some harm sufficient to warrant

a reversal had the requested instruction been requested and improperly denied, then

it naturally follows that the proceedings probably would have would have been

different because of the prejudicial nature of the extraneous offenses against which

a limiting instruction is intended to protect. At a minimum Petitioner would

preserve his appellate rights on the jury charge if the judge denied Trial Counsel’s

request. A limiting instruction cannot be so valuable that it must be given or harm

is presumed, but then be of so little value that the failure to request it does not

affect the outcome of the case.

II.   SECOND GROUND FOR REVIEW: The Court of Appeals erred by

allowing a conviction with legally insufficient evidence to stand on speculation in

violation of Hooper v. State.

                        A.        REASONS FOR REVIEW

      This Court should review the decision of the Court of Appeals under Texas

Rules of Appellate Procedure 66.3(b),(c), and (f). The issue of legally insufficient

evidence as it relates to the jury ability to either draw inferences from the evidence

or speculate has been addressed by this Court in several decisions. Hooper v. State,

214 S.W.3d 9 (Tex. Crim. App. 2007) stands as the on point case to describing the

difference between allowed inference and speculation. The Court of Appeals

decision stands in opposition of the Hooper decision. The particular facts in this


                                         10
case give rise to an important issue of Texas and federal jurisprudence and should

be decided by this Court because there is not clear case law to demonstrate what

constitutes a showing of tampering sufficient to either exclude evidence or render

the evidence legally insufficient. Additionally, the Court of Appeals’ decision is far

departed from the accepted and usual course of judicial proceedings in relationship

to the precedents of the Court of Criminal Appeals and the United States Supreme

Court.

                                  B.    ARGUMENT:

1.       The Court of Appeal’s opinion is in opposition with Hooper’s
         prohibition against speculation

         The concept that the jury can make reasonable inferences is subject to the

reasonable inferences that may be deduced from the evidence. Hooper, 214 S.W.3d

at 16. The jury is not allowed to draw conclusions based on speculation. Id. The

Court of Criminal Appeals in Hooper gave the following hypothetical to

distinguish between inferences and speculation:

         A woman is seen standing in an office holding a smoking gun. There
         is a body with a gunshot wound on the floor near her. Based on these
         two facts, it is reasonable to infer that the woman shot the gun (she is
         holding the gun, and it is still smoking). Is it also reasonable to infer
         that she shot the person on the floor? To make that determination,
         other factors must be taken into consideration. If she is the only
         person in the room with a smoking gun, then it is reasonable to infer
         that she shot the person on the floor. But, if there are other people
         with smoking guns in the room, absent other evidence of her guilt,

                                            11
      it is not reasonable to infer that she was the shooter. No rational
      juror should find beyond a reasonable doubt that she was the
      shooter, rather than any of the other people with smoking guns.
      To do so would require impermissible speculation. But, what if
      there is also evidence that the other guns in the room are toy guns and
      cannot shoot bullets? Then, it would be reasonable to infer that no one
      with a toy gun was the shooter. It would also be reasonable to infer
      that the woman holding the smoking gun was the shooter. This would
      require multiple inferences based upon the same set of facts, but they
      are reasonable inferences when looking at the evidence. We first have
      to infer that she shot the gun. This is a reasonable inference because
      she is holding the gun, and it is still smoking. Next, we have to infer
      that she shot the person on the floor. This inference is based in part on
      the original inference that she shot the gun, but is also a reasonable
      inference drawn from the circumstances.


Id. at 16. (emphasis added).

      In Petitioner’s case no evidence or testimony was offered to explain a

variation in or substitution of the substance from the time of the seizure to the time

of trial. At the time of the testing the substance was different from the original

substance. RR 4:20:15-19 & 54:5-22. The evidence submitted for testing was a

powder, while the evidence seized were small rocks. RR 5:12:9-15.

      The Court of Appeals opinion focuses on that the method of securing the

substance from seizure to testing and testing to trial. However, the Court neglects

to address what Petitioner focused on at trial, that the substance was tampered with

and/or replaced with another substance prior to securing it in the evidence locker.

RR 5:34-35. At trial, Petitioner made the point that Officer Shriver took the

substance off camera, and then called the substance bb sized rocks, but then later a

                                         12
powder was submitted. RR 5:34-35.

      The Court of Appeals states that the jury could have reasonably believed that

the substance had broken down, referencing Samaniego v. State, No. 03-01-00718-

CR, 2002 WL 1724016 (Tex. App.—Austin July 26, 2002, no pet.) for the

proposition that a showing that the substance changed between the time of seizure

and trial is not sufficient to show tampering. However, this assertion by the Court

would require more than reasonable inferences, but actually call for speculation on

the part of the jury. The Court of Appeals erred in its reasoning and reference to

the Samaniego decision, because in Samaniego testimony was offered to explain

why the substance had changed form. Id. at *3-4. Here, the jury had to speculate

that the substance could have broken down, without any evidence of such a

possibility. Such an inference requires the knowledge and testimony of an expert or

at least a lay person who personally observed the breakdown of the substance.

Such a call for speculation from the jury means that the State can present any

substance no matter the form and expect the jury to find that it is the same. If the

substance was a different color, the jury could speculate that it was burned. If the

substance was larger, the jury could speculate that such a substance was subject to

expansion from heat. If the substance was not present at all, the jury could

speculate that the substance was used up in testing.

      Here, the jury could not have reasonably believed that the substance broke


                                         13
down to a powder without any evidence to support that conclusion, because as in

the Hooper hypothetical, there are more possibilities than the substance had

transformed from a rock to a powder. There is the possibility of tampering and the

jury was given no evidence that there was not tampering. The change in the

substance itself without explanation is evidence of tampering on its face. In this

case, there are two smoking guns with no evidence from the State to suggest which

smoking gun was fired at the body on the floor. Here, the State produced no

evidence to suggest that the substance had broken down due to transport or testing,

therefore there is no evidence upon which the jury could have made a reasonable

inference that the break down was from transport or testing.

                                 III.   PRAYER
       WHEREFORE, PREMISES CONSIDERED, Petitioner, and requests the

Court to grant the Defendant’s Petition for Discretionary review, allowing full

briefing on the issues, hear oral argument of the parties, overturn the court of

appeals’ decision and the trial court’s judgment of guilt, and enter a finding of

acquittal in favor of Petitioner, or, in the alternative, remand the case for a new

trial on the merits.




                                        14
                                          Respectfully submitted,

                                          PARKER & BLIZZARD P.L.L.C.
                                          702-C Hickory St.
                                          Abilene, Texas 79601
                                          Tel: (325) 676.1000
                                          Fax: (325) 455.8842


                                          By:/s/Jacob Blizzard
                                          Jacob Blizzard
                                          State Bar No. 24068558

                                          ATTORNEY FOR APPELLANT

                            CERTIFICATE OF SERVICE
       This is to certify that on May 13, 2015, a true and correct copy of the above
and foregoing document was served on the Taylor County District Attorney's
Office, Taylor County, Texas, by facsimile transmission to (325) 674-1261 and the
State Prosecuting Attorney by facsimile transmission to (512) 463-5724.


                                      /s/ Jacob Blizzard
                                      Jacob Blizzard

                      CERTIFICATE OF COMPLIANCE
       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with
the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it
contains 2929 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

                                      /s/ Jacob Blizzard
                                      Jacob Blizzard




                                        15
APPENDIX



   16
Opinion filed January 29, 2015




                                        In The


          Eleventh Court of Appeals
                                     __________

                                 No. 11-12-00095-CR
                                     __________

                   JAMES WILLIAM SMITH, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 350th District Court
                                 Taylor County, Texas
                           Trial Court Cause No. 10035-D



                      MEMORANDUM OPINION
      The jury found James William Smith, Appellant, guilty of the offense of
possession of cocaine. 1     The jury found that Appellant had two prior felony
convictions for possession of cocaine and assessed punishment at confinement for

      1
        See TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (Penalty Group 1), § 481.115(b)
(Offense: Possession of Substance in Penalty Group 1) (West 2010).
eight years. The trial court sentenced Appellant accordingly. Appellant challenges
the sufficiency of the evidence to support his conviction, and he also asserts that he
received ineffective assistance of counsel. We affirm.
                                     I. The Charged Offense
       The grand jury indicted Appellant for possession of less than one gram of
cocaine with two prior felony convictions for possession of cocaine. Appellant’s
first prior conviction was a third-degree felony, and his second prior conviction
was a second-degree felony.
       A person commits the offense of possession of cocaine if he intentionally or
knowingly possesses cocaine. HEALTH & SAFETY §§ 481.102(3)(D), 481.115(a).
Possession of less than one gram of cocaine is a state jail felony. HEALTH &
SAFETY § 481.115(b).           A state jail felony with two prior felony convictions
becomes punishable as a second-degree felony, which shall be punished by
imprisonment “for any term of not more than 20 years or less than 2 years” and an
optional fine “not to exceed $10,000.” 2 TEX. PENAL CODE ANN. § 12.33 (West
2011) (Second Degree Felony Punishment), § 12.425(b) (West Supp. 2014)
(Penalties for Repeat and Habitual Felony Offenders on Trial for State Jail Felony).
       Appellant pleaded “not guilty” and proceeded to trial.
                                       II. Evidence at Trial
       Cati Schriver, a detective with the Abilene Police Department, testified that
she pulled Appellant over because she “thought [Appellant] would possibly be
intoxicated.” Detective Schriver testified that she turned on her “Coban” when she
began following Appellant and that the video accurately depicted what happened.3

       2
         The two previous convictions must not be state jail felony convictions, and the second previous
conviction must have occurred subsequent to the first previous conviction. PENAL § 12.425(b).
       3
         Detective Schriver explained that a “Coban” is a camera system mounted behind the rearview
mirror of the police car that records audio and video.


                                                   2
She called for a K-9 officer, and Officer Kevin Easley arrived five to seven
minutes later. She also performed a horizontal gaze nystagmus test on Appellant
and believed that he was not intoxicated.
      Officer Easley, a K-9 handler with the City of Abilene, had a K-9 named
Rocco at the time of Appellant’s arrest in this case. Officer Easley testified that he
received a call for a K-9 officer for a traffic stop, that Officer Schriver was the
officer involved, and that Appellant was the citizen who was stopped. Officer
Easley did not remember any other officers or citizens present. Officer Easley
advised Detective Schriver that the dog gave a positive alert; whereupon, Detective
Schriver searched Appellant. Detective Schriver testified that she found “small
off-white rock substances” in Appellant’s shirt pocket that she believed was crack
cocaine.
      Officer Easley testified that Rocco alerted to a piece of plastic on the ground
near Appellant’s pickup and to the driver’s door of Appellant’s pickup. Officer
Easley testified that, after Rocco made a positive alert, Officer Easley searched
Appellant’s pickup but did not find any drugs. He said that Detective Schriver
reported that she found “some small objects” on Appellant and that they suspected
it was crack cocaine. He also said that he tested the substance that Detective
Schriver seized from Appellant’s shirt pocket and that it tested positive for cocaine.
      Detective Schriver testified that State’s Exhibit No. 2 was the same envelope
that she signed into evidence into which she had placed the rocklike substance that
she took from Appellant’s shirt pocket. She placed a clear piece of tape on the
back of the envelope with her initials “half on half off the tape” to make it obvious
if anyone “breaks that seal” “because it won’t line up anymore.” After she signed
the envelope, she locked it in the evidence vault. One of three evidence clerks
moved it from the small vault lockbox “into the bigger,” and that person’s name
appeared on the envelope. Detective Schriver said that she knew the envelope was

                                            3
delivered to the “Texas Department of Safety’s laboratory” for analysis because
two seals appeared on the envelope: the person who took it from the police
department placed one seal, and the person who received it at the lab placed the
other seal. She also said that Jimmy Seals’s name appeared on the seal that
showed Seals took the envelope from the police department to the lab.
      On cross-examination, Detective Schriver testified that she pulled Appellant
over for weaving and speeding. Appellant’s trial counsel subsequently asked
Detective Schriver, “What caused you to go from speeding and weaving to drug
possession? . . . What about that event caused you to think that . . . you needed to
search him or his vehicle for drugs?” Detective Schriver answered, “Whenever we
stop somebody, we run their name through our system and I could see previous
history   of   drug   possession.”    Appellant’s    trial   counsel   objected    to
Detective Schriver’s answer and explained, “[T]he witness has testified to my
client’s prior record. . . . And we’re in the guilt and innocence phase of this, Your
Honor. There is no place for us to be getting into his prior record at this point.”
The trial court responded, “You opened the door . . . . That question just begs for
that response,” and overruled the objection.
      Detective Schriver also testified on cross-examination that she had stopped
Appellant once prior to this stop, had called the drug dog, had searched Appellant,
and had not found any drugs in Appellant’s vehicle or on his person during the
prior stop. She agreed that she had made a mistake about drug possession the
previous time she pulled Appellant over. She also agreed that she was mistaken
during the second stop when she thought that Appellant was intoxicated. She said
that the objects found in Appellant’s shirt pocket were “small pieces of an off-
white rocklike substance” “approximately the size of a BB,” that “there was more
than one,” and that “[t]hey were all small. They looked as if maybe they had
crumbled.”

                                         4
        William Chandley, a chemist with the drug section of the Department of
Public Safety’s crime lab, testified that he recognized the envelope labeled as
State’s Exhibit No. 2, that he tested the substance contained in it, and that
Appellant’s name appeared as the suspect on the report and the submission form.
Chandley testified that he received the envelope from Seals, the “evidence person”
for the Abilene Police Department. Chandley testified that the envelope did not
“appear to have been tampered with in any way” when he received it. Chandley
testified that he analyzed the contents of the envelope and determined that it
contained .03 grams of cocaine. On cross-examination, Chandley testified that
State’s Exhibit No. 2 contained a powder and that he received it from the police
department in powder form.
        Detective Schriver’s “Coban” video showed that she followed Appellant.4
Officer     Easley      and     Rocco       walked      around      Appellant’s        pickup      after
Detective Schriver pulled Appellant over. Rocco looked back and forth from the
ground to Officer Easley. Officer Easley picked up something that was on the
ground and searched the cab of Appellant’s pickup.
        The video also showed that Detective Schriver performed the horizontal
gaze nystagmus test on Appellant while the K-9 unit walked around and searched
the pickup. Detective Schriver determined that Appellant was not intoxicated
while Officer Easley searched the cab of Appellant’s pickup. Detective Schriver
subsequently began to search Appellant. Detective Schriver pulled out several
objects, including a razor blade, from Appellant’s shirt pocket. Detective Schriver
talked with Officer Easley about what she had found. Detective Schriver arrested
Appellant and told him that the “little white rocks” she had pulled out of his shirt
“tested positive.”

        4
          The record shows that both the State and Appellant agreed to stop the video at a certain point,
but the record does not state when. We will describe the pertinent facts contained in the video.


                                                   5
                                III. Issues Presented
      Appellant presents two points of error on appeal. In the first point, he
challenges the sufficiency of the evidence to convict him. In the second point, he
asserts that he received ineffective assistance of counsel.
                               IV. Standard of Review
      We apply the sufficiency standard outlined in Jackson and its progeny to
Appellant’s sufficiency point. Jackson v. Virginia, 443 U.S. 307, 318 (1979);
Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010); Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007).            We review all of the evidence
introduced by both the State and Appellant in the light most favorable to the jury’s
verdict and decide whether any rational jury could have found each element of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We rely on the jury
to resolve conflicts in the evidence, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. See id. We review all evidence,
whether the trial court properly or improperly admitted it. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). With respect to Appellant’s complaint
of ineffective assistance of counsel, we apply the well-recognized standard of
review from Strickland v. Washington, 466 U.S. 668, 686 (1984).
                                     V. Analysis
      A. Point One: Sufficiency of the evidence
      Appellant challenges the sufficiency of the evidence to support his
conviction because the State, he asserts, did not prove the chain of custody of the
cocaine. He complains that a break in the chain of custody existed between
Detective Schriver, who booked the substance into police evidence, and Chandley,
who received the substance at the lab. Appellant asserts that the change from the
“rocklike substance” that Detective Schriver seized from Appellant’s shirt pocket
to the “powder” that the lab received “gives rise to an inference that tampering or

                                          6
alteration took place.” Appellant did not object to the admission of State’s Exhibit
No. 2 and does not challenge its admission on appeal.
       The evidence showed that Rocco made a positive alert for drugs on the piece
of plastic that fell to the ground.      Detective Schriver subsequently searched
Appellant and found crumbled, off-white rocklike pieces of what she thought was
crack cocaine in his shirt pocket. Officer Easley performed a preliminary field test
on the rocklike substance, and it tested positive for cocaine.
       Detective Schriver placed the rocklike substance that she took from
Appellant’s shirt pocket into an envelope; signed her name on the envelope, along
with her initials and the date of the arrest; and placed tape on the back with her
initials “half on half off the tape.” Detective Schriver locked the envelope in the
evidence vault, and the clerk’s name appeared on the envelope along with a seal
that showed that Seals took the envelope to the DPS lab. State’s Exhibit No. 2 was
that same envelope, and the case number on the envelope corresponded with
Appellant’s case. Chandley received the envelope from Seals and testified that it
had not been tampered with. Chandley tested the substance in the envelope and
found that it contained .03 grams of cocaine.
       No evidence in the record indicated that anyone tampered with the envelope;
therefore, the jury was free to infer that the crumbled, rocklike substance became a
powder between the time Detective Schriver booked it into evidence and the time
Chandley received it at the lab. See Jackson, 443 U.S. at 319; see, e.g., Samaniego
v. State, No. 03-01-00718-CR, 2002 WL 1724016, at *4 (Tex. App.—Austin July
26, 2002, no pet.) (not designated for publication) (holding that “[t]here is no
reason to believe the evidence did not simply deteriorate by breaking down from
‘rock’ form to granular form over the time between the seizure and its presentation
at trial”).   The evidence was sufficient for a rational jury to find beyond a



                                          7
reasonable doubt all of the elements of the offense of possession of cocaine by
Appellant. See Jackson, 443 U.S. at 319. We overrule Appellant’s first point.
      B. Point Two: Ineffective assistance of counsel
      Appellant asserts that he received ineffective assistance from his trial
counsel. Specifically, Appellant complains that his trial counsel’s performance
was deficient because counsel opened the door to Appellant’s criminal history,
failed to request a limiting instruction or jury instruction in the charge, “failed to
object or preserve error for appeal on the issue of chain of custody or admission of
the substance alleged to be cocaine,” and “failed to object to or file a pretrial
motion to exclude the mention or use of field tests.”
      The benchmark for evaluating an ineffective-assistance-of-counsel claim is
whether counsel’s conduct “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. The Strickland test has two prongs: (1) a
performance standard and (2) a prejudice standard.            Id. at 687.    For the
performance standard, we must determine whether Appellant has shown that
counsel’s representation fell below an objective standard of reasonableness. Id. If
so, we then determine whether there is a reasonable probability that the outcome
would have differed but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510, 534
(2003); Strickland, 466 U.S. at 686; Andrews v. State, 159 S.W.3d 98, 102 (Tex.
Crim. App. 2005).
      The reasonable probability must rise to the level that it undermines
confidence in the outcome of the trial. Isham v. State, 258 S.W.3d 244, 250 (Tex.
App.—Eastland 2008, pet. ref’d). A failure to make a showing under either prong
of the Strickland test defeats a claim of ineffective assistance of counsel. Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Andrews, 159 S.W.3d at 101.
A reviewing court need not consider both prongs of the Strickland test and can

                                          8
dispose of an ineffectiveness claim on either prong. Walker v. State, 406 S.W.3d
590, 594 (Tex. App.—Eastland 2013, pet. ref’d) (citing Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App. 2012)); see Strickland, 466 U.S. at 697.
      The first prong of Strickland requires Appellant to establish that trial counsel
provided deficient assistance of counsel. There is a strong presumption that trial
counsel’s conduct fell within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689; Isham, 258 S.W.3d at 250. To overcome
this deferential presumption, an allegation of ineffective assistance must be firmly
founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999). In most cases, a silent record that provides no explanation for counsel’s
actions will not overcome the strong presumption of reasonable assistance. Id.
Appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648
(Tex. App.—Eastland 2005, pet. ref’d). Generally, the record on direct appeal will
not be sufficient to show that trial counsel’s representation was so lacking as to
overcome the presumption of reasonable conduct. Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002).
      We do not inquire into trial strategy unless no plausible basis exists for trial
counsel’s actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel
Op.] 1981). When the record contains no evidence of the reasoning behind trial
counsel’s actions, we cannot conclude that counsel’s performance was deficient.
Jackson, 877 S.W.2d at 771. If trial counsel cannot explain the challenged actions,
then we will not conclude that those actions constituted deficient performance
unless they were so outrageous that no competent attorney would have engaged in



                                          9
them. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
             1. Opening the door
      Evidence of other crimes, wrongs, or acts is inadmissible at the
guilt/innocence phase of trial to show the accused’s conformity with those other
acts. TEX. R. EVID. 404(b); Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim.
App. 1992). An accused may make otherwise inadmissible evidence admissible,
however, by “opening the door” through questions that elicit testimony about the
extraneous offenses. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009).
      The record shows that Appellant’s trial counsel unintentionally elicited
testimony about Appellant’s criminal history.         The trial court admitted that
testimony over counsel’s objections, ruling that counsel had “opened the door by
the nature of [his] question in this proceeding.” Appellant has failed to show by a
preponderance of the evidence that a reasonable probability exists that, but for
counsel’s error, the result of the proceeding would have been different.           See
Strickland, 466 U.S. at 687.
             2. Limiting instruction
      Appellant complains that he was prejudiced when his trial counsel did not
request a limiting instruction subsequent to his opening the door to extraneous
offenses. Appellant cites to Ex parte Varelas, 45 S.W.3d 627, 631–32 (Tex. Crim.
App. 2001), to support his position. In Varelas, the defendant’s counsel failed to
request a burden of proof or limiting instruction after the trial court admitted State-
offered evidence of an extraneous offense. 45 S.W.3d at 631. In Varelas, a habeas
proceeding, the Court of Criminal Appeals had before it an affidavit from
Varelas’s trial counsel regarding his oversight, as opposed to trial strategy, in
failing to request a limiting instruction. Id. at 632. Moreover, the Court of

                                          10
Criminal Appeals in Varelas recognized that the appellate record on direct appeal
is usually inadequate to develop a claim of ineffective assistance. Id. at 629–30.
Without evidence in the record, we will not speculate why Appellant’s trial counsel
did not request a limiting instruction. See Delgado v. State, 235 S.W.3d 244, 250
(Tex. Crim. App. 2007) (noting that “the decision of whether to request a limiting
instruction concerning the proper use of certain evidence, including extraneous
offenses, may be a matter of trial strategy”); Johnson, 614 S.W.2d at 152; cf. Ex
parte Varelas, 45 S.W.3d at 632 (using affidavit from trial counsel in habeas
proceeding to determine whether actions at trial were result of trial strategy). We
cannot conclude, based on a silent record, that counsel’s failure to request a
limiting instruction was deficient; nor can we conclude that it was so outrageous
that no competent attorney would do likewise. See Jackson, 877 S.W.2d at 771
(holding that lack of evidence in record of trial counsel’s reasons for actions
precludes court from concluding that trial counsel’s performance was deficient);
see, e.g., Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (holding
that counsel’s decision to not request a limiting instruction was not an
unreasonable trial strategy because a request may have drawn “more attention to
the incriminating evidence”).
            3. Chain of custody
      The State offered State’s Exhibit No. 2, which contained cocaine, without
objection from Appellant’s trial counsel.     The record does not explain why
Appellant’s trial counsel did not object to State’s Exhibit No. 2; therefore, we
cannot conclude that his actions were deficient. See Jackson, 877 S.W.2d at 771.
Counsel’s actions were not so outrageous that a competent attorney would have
done otherwise. See Goodspeed, 187 S.W.3d at 392; see, e.g., O’Donoghue v.
State, No. 13-09-329-CR, 2010 WL 2783746, at *5 (Tex. App.—Corpus Christi
July 15, 2010, pet. ref’d) (mem. op., not designated for publication) (holding that

                                        11
trial counsel’s failure to object to the chain of custody of certain evidence was not
outrageous).
               4. Field test
      Appellant’s trial counsel did not object to any testimony related to
Officer Easley’s field test of the substance that Detective Schriver seized from
Appellant, and no evidence exists in the record to show why Appellant’s trial
counsel acted in this manner. Without such evidence, we cannot conclude that his
actions were deficient. See Jackson, 877 S.W.2d at 771. Counsel’s actions were
not outrageous because Chandley’s testimony that the substance tested positive for
cocaine would make the introduction of the field test harmless error.            See
Goodspeed, 187 S.W.3d at 392; Bonner v. State, No. 11-93-159-CR, 1994 WL
16189698, at *2 (Tex. App.—Eastland Dec. 1, 1994, pet. ref’d) (not designated for
publication) (citing Hicks v. State, 545 S.W.2d 805, 809–10 (Tex. Crim. App.
1977)) (holding that “any error brought about by counsel’s failure to object [to an
inadmissible field test] was rendered harmless upon the introduction of . . . the
chemist’s report”). For counsel’s actions or omissions related to the limiting
instruction, the chain of custody, and the field test, we do not reach the prejudice
prong of Strickland because Appellant has failed to satisfy the deficient-
performance prong. See Perez, 310 S.W.3d at 893. We overrule Appellant’s
second point.
                                  VI. Conclusion
      After reviewing the record, we hold that there was sufficient evidence for a
rational jury to have found beyond a reasonable doubt all of the elements for the
offense of possession of cocaine by Appellant. See Jackson, 443 U.S. at 318. We
also hold that Appellant has not satisfied both prongs under Strickland as required
to sustain his claim of ineffective assistance of counsel. See Strickland, 466 U.S.
at 686.

                                         12
                              VII. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


January 29, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                        13
