                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                               '
 JOHN WESLEY ASHLEY,                                          No. 08-11-00231-CR
                                               '
                       Appellant,                                 Appeal from
                                               '
 v.                                                            355th District Court
                                               '
 THE STATE OF TEXAS,                                         of Hood County, Texas
                                               '
                       Appellee.               '                 TC # CR11714)


                                        OPINION

       John Wesley Ashley appeals from a conviction of delivery of methamphetamine under

one gram, enhanced by two prior felony convictions for possession of methamphetamine under

one gram. A jury assessed the Appellant’s punishment at a term of ten years’ confinement and a

$10,000 fine. We affirm.

                                    FACTUAL SUMMARY

       Acting on information from a confidential informant, undercover police officer Ray

Miller gave Appellant one hundred dollars in exchange for a bag containing a white, crystalline

substance purporting to be one gram of methamphetamine.           Investigator Justin Caraway

provided back up for the controlled buy in a nearby, parked car but did not actually witness the

transaction between Miller and Appellant. Miller did not videotape the transaction but Caraway

testified that he was able to monitor the transaction over an open cell phone line. After the

controlled buy, Miller and Caraway conducted a field test that identified the substance as

methamphetamine. William Chandley, a Texas Department of Public Safety chemist, tested the

substance Appellant handed to Miller and determined that it was 0.95 grams of
methamphetamine.

                                     LEGAL SUFFICIENCY

       In Issue One, Appellant argues the State did not present sufficient evidence to support his

conviction for delivery of methamphetamine.

                                         Standard of Review

       To determine the legal sufficiency of the evidence used to support a conviction for

delivery of methamphetamine, we view the evidence in the light most favorable to the verdict

and determine whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.

2010), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). Under this standard, it is “the responsibility of the trier of fact fairly to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. 2789. The “verdict must stand and unless it is

found to be irrational or unsupported by more than a ‘mere modicum’ of the evidence.” Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We resolve all inconsistencies in the

testimony in favor of the verdict. Id.

                              Applicable Law/Elements of the Offense

       A person commits the offense of delivery of methamphetamine if the person knowingly

delivers methamphetamine that, by aggregate weight, is less than one gram. TEX.HEALTH &

SAFETY CODE ANN. § 481.112(a)-(b)(West 2010). “‘Deliver’ means to transfer, actually or

constructively, to another a controlled substance . . . .” Id. § 481.002(8). In a jury trial, the jury

“is the exclusive judge of the facts proved, and of the weight to be given to the testimony.”

TEX.CODE CRIM.PROC.ANN. § 38.04 (West 1979).                     Conflicts or contradictions in the



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evidence will not call for reversal if there is enough credible testimony to support a conviction

for delivery of a controlled substance. See Powers v. State, 737 S.W.2d 53, 55 (Tex.App.--San

Antonio 1987, pet. ref’d).

       In Powers, the appellant contended that the evidence was insufficient to support his

conviction for the offense of delivery of cocaine. Id. at 54. There, an undercover narcotics agent

testified that he had received cocaine from the appellant. Id. at 55. A Department of Public

Safety chemist testified that the substance received by the undercover agent was cocaine. Id.

Applying the Jackson standard, the court found that “[t]he jury apparently believed this

testimony, and their verdict should not be disturbed.” Id.

                                           Application

       Here, Appellant argues that the evidence is legally insufficient for the following reasons:

(1) the record contains no evidence probative of an element of the offense, (2) the record

contains a mere modicum of evidence probative of an element of the offense, (3) the evidence

conclusively establishes a reasonable doubt, and (4) the acts alleged do not constitute the

criminal offense charged. We now review the State’s evidence in a light most favorable to the

verdict.

       Ray Miller testified that he handed Appellant one hundred dollars, and Appellant handed

him a baggie containing a white, crystalline substance that purported to be methamphetamine.

Miller explained that one hundred dollars was the customary price for one gram of

methamphetamine. He performed a field test on the substance he received from Appellant that

produced a positive result for the presence of methamphetamine. Justin Caraway testified that,

while he did not visually witness the transaction between Appellant and Miller, he had an open

cell phone line, and the controlled buy went according to plan. William Chandley, a Department



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of Public Safety chemist, testified that he tested the substance and determined that it was

methamphetamine weighing 0.95 grams.

       Although Appellant argues that Miller’s apparently conflicting testimony renders the

evidence legally insufficient to support his conviction, we resolve any inconsistencies in favor of

the verdict. See Moreno, 755 S.W.2d at 867. The jury assessed the credibility and weight of the

testimony offered by the State’s witnesses. The evidence supporting Appellants conviction for

delivery of methamphetamine clearly represents more than a “modicum.” Accordingly, taken in

the light most favorable to the verdict, the evidence is legally sufficient to permit a rational trier

of fact to find beyond a reasonable doubt that Appellant knowingly delivered methamphetamine

that, by aggregate weight, was less than one gram. We overrule Issue One.

                        INEFFECTIVE ASSISTANCE OF COUNSEL

       In Issue Two, Appellant complains that he did not receive effective assistance of trial

counsel.

                                        Standard of Review

       We review ineffective assistance of counsel claims according to the United States

Supreme Court’s two-pronged Strickland test.           Thompson v. State, 9 S.W.3d 808, 812

(Tex.Crim.App. 1999), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). First, Appellant must show that “counsel’s performance was deficient, i.e.,

that his assistance fell below an objective standard of reasonableness.” Thompson, 9 S.W.3d at

812. Second, Appellant must prove prejudice by showing “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. Id.

“Failure of [A]ppellant to make either of the required showings of deficient performance and

sufficient prejudice defeats the claim of ineffective assistance.” Rylander v. State, 101 S.W.3d



                                                -4-
107, 110 (Tex.Crim.App. 2003). We “look to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Thompson, 9 S.W.3d at

813. Further, “any judicial review must be highly deferential to trial counsel and avoid the

deleterious effects of hindsight.” Id.

        Defense Counsel’s Representation Did Not Fall Below The Objective Standard of
                                       Reasonableness

       When analyzing an ineffective assistance of counsel claim, we “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the [appellant] must overcome the presumption that, under the circumstances,

the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689,

104 S.Ct. 2065, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83

(1955). “To defeat the presumption of reasonable professional assistance, ‘any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.’” Thompson, 9 S.W.3d at 814, quoting McFarland v.

State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). In the majority of cases, however, “the

underdeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual

prongs of Strickland.”     Thompson, 9 S.W.3d at 814 n.6.          “Thus, the presumption that an

attorney’s actions were sound trial strategy ordinarily cannot be overcome absent evidence in the

record of the attorney’s reasons for his conduct.” Landers v. State, 110 S.W.3d 617, 622

(Tex.App.--Houston [14th Dist.] 2003, pet. ref’d). Appellant “must prove by a preponderance of

the evidence, that there is, in fact, no plausible professional reason for a specific act or omission”

to show ineffective assistance of counsel on direct appeal. Bone v. State, 77 S.W.3d 828, 836

(Tex.Crim.App. 2002).

       Appellant contends he received ineffective assistance of counsel because: (1) defense

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counsel did not give an opening statement; (2) defense counsel did not acquaint himself with the

facts of the case, resulting in cross-examination of witnesses that was sorely lacking; and (3)

defense counsel did not present any evidence during the punishment phase of the trial. The

record does not provide evidence of counsel’s reasons for his actions during the trial.

Accordingly, Appellant must establish, by a preponderance of the evidence, that there is no

plausible professional reason for defense counsel’s acts or omissions during trial. See Bone, 77

S.W.3d at 836. We now examine defense counsel’s representation at the trial court.

       Defense counsel declined to make an opening statement. This omission does not, by

itself, constitute ineffective assistance. See Taylor v. State, 947 S.W.2d 698, 704 (Tex.App.--

Fort Worth 1997, pet. ref’d)(stating declining to make an opening statement is a tactical decision

and did not render counsel’s performance deficient). Counsel cross-examined every one of the

State’s witnesses and attacked the credibility of the State’s confidential informant. Counsel

emphasized that Caraway did not actually see Appellant hand Miller the baggie containing the

crystalline substance. Appellant asserts that the cross-examination of Chandley was sorely

lacking, and that his attorney should have elicited a more thorough cross-examination of all of

the State’s witnesses. These complaints are without merit. See Matthews v. State, 830 S.W.2d

342, 347 (Tex.App.--Houston [14th Dist.] 1992, no writ)(stating “the decision not to cross-

examine is the result of wisdom acquired by an attorney’s trial experience,” and “[t]he amount of

cross-examination does not prove ineffective assistance”); see also Bone, 77 S.W.3d at 836

(stating “[a] vague, inarticulate sense that counsel could have provided a better defense is not a

legal basis for finding counsel constitutionally incompetent”).

       Finally, Appellant claims he received ineffective assistance of counsel during the

punishment phase because counsel did not call any of Appellant’s family members to testify on



                                               -6-
his behalf. “A claim for ineffective assistance of counsel based on counsel’s failure to call

witnesses fails in the absence of a showing that such witnesses were available to testify and that

the [Appellant] would have benefitted from their testimony.” Brennan v. State, 334 S.W.3d 64,

79 (Tex.App.--Dallas 2009, no pet.). According to Appellant, “[h]ad defense counsel called

these family members, the jury would have likely reached a different sentence.” Appellant has

failed to show that such witnesses were available to testify and that the sentence would have

been different if they had testified.

        We hold, based on the totality of defense counsel’s representation, that Appellant has not

satisfied his burden under the first prong of Strickland. Accordingly, we need not address

Strickland’s second prong, and Appellant’s ineffective assistance of counsel claim fails. See

Rylander, 101 S.W.3d at 110 (holding failure to prove first prong of Strickland defeats claim of

ineffective assistance). Having overruled each issue presented on appeal, we affirm the trial

court’s judgment.


October 24 , 2012                       _______________________________________________
                                        ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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