                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-12-00188-CR


                     TONI DOMINICA ESTRADA, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 108th District Court
                                   Potter County, Texas
            Trial Court No. 62,723-E, Honorable Douglas Woodburn, Presiding

                                     May 2, 2014

                           MEMORANDUM OPINION
                  Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      A jury convicted appellant, Toni Dominica Estrada, of possession with intent to

deliver a controlled substance and assessed punishment at twenty-five years in prison.1

Through three issues, appellant argues the evidence was insufficient, the trial court




      1
         See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010). An
offense under this section is a first-degree felony. Based on appellant’s prior felony
conviction for possession of a controlled substance with intent to deliver, the
punishment range was enhanced to imprisonment for life or any term not more than 99
years or less than 15 years. TEX. PENAL CODE ANN. § 12.42(c)(1)(West Supp. 2013).
commented on the weight of the evidence, and trial counsel rendered ineffective

assistance. We will affirm.


                                        Background


       Evidence at trial showed appellant leased an apartment in Amarillo. The terms of

her lease agreement identified Destiny Urias was an “occupant” of the premises. On

November 19, 2010, sheriff’s deputies executed a search warrant and searched the

one-bedroom apartment.        The deputies found appellant and Urias underneath the

covers in bed in the bedroom. In the bathroom, deputies found a pill bottle bearing the

name of a third person. The kitchen trash container held several baggies with a corner

cut away. According to a deputy, these were “remnants of narcotics dealing.” That is,

repackaging drugs “for street sales.” A search of appellant’s purse produced a wallet

containing $384 in cash.


       On a bedroom computer table, deputies located an Apple iPhone. Appellant

acknowledged ownership of the phone. Officers ran a narcotics sniffing dog through the

apartment. It alerted on a safe in the bedroom closet. On further review of appellant’s

iPhone, a deputy noticed a number saved to contacts which appeared out of the

ordinary. Entering this number as the combination, deputies were able to open the

safe. Among its contents, they found a blue bag holding a black box. Inside the box

were   three   baggies     containing    a   crystal   substance   they   believed   was

methamphetamine. A Texas Department of Public Safety analyst testified the crystal

substance weighed 7.70 grams and contained methamphetamine. She believed this




                                             2
quantity of drug was sufficient for seventy-seven doses. Also found were a set of digital

scales and prescription bottles containing pills.


       Urias received a prison sentence after pleading guilty to the charge of

possession with intent to deliver a controlled sentence. She returned from prison to

testify for appellant. According to Urias, the illegal drugs were hers and she never told

appellant of her use and distribution of the contraband.        She agreed that she and

appellant had a “romantic relationship.” But appellant would not have allowed Urias to

use drugs and live in the apartment. Urias said she concealed her unlawful conduct

from appellant by smoking methamphetamine at the apartment door in appellant’s

absence or at other locations, dealing drugs from a nearby laundry, deleting evidence of

her narcotics trafficking from appellant’s iPhone, and disposing of plastic baggies with

the corners cut before appellant returned home from work. She told buyers of her

narcotics not to call or come to the apartment but to wait for her to call them.


       The court’s charge on guilt or innocence included an instruction on the law of

parties.2 Following conviction and sentencing as noted, appellant appealed.


                                          Analysis


       By her first issue appellant asserts the evidence was insufficient to establish her

possession of a controlled substance.




       2
        A person is criminally responsible for the offense of another, and can therefore
be convicted as a party, if, acting with intent to promote or assist the commission of the
offense, she solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011).

                                             3
      We evaluate the sufficiency of evidence supporting criminal convictions under the

standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). That

standard requires that we view all 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 crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.

Crim. App. 2005).


      A person commits an offense if she knowingly possesses with intent to deliver a

controlled substance in an amount four grams or more but less than 200 grams. TEX.

HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010). Possession means “actual

care, custody, control, or management.”         TEX. HEALTH & SAFETY CODE ANN. §

481.002(38) (West Supp. 2013); TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp.

2013). A person commits a possession offense only if she voluntarily possesses the

prohibited item.    TEX. PENAL CODE ANN. § 6.01(a) (West 2011).         Possession is a

voluntary act if the possessor knowingly obtains or receives the thing possessed or is

aware of her control of the thing for a sufficient time to permit her to terminate her

control. TEX. PENAL CODE ANN. § 6.01(b) (West 2011). Control may be exercised jointly

by more than one person. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986);

Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.).


      When the accused is not in exclusive control of the place where the contraband

is found, the State must establish care, custody, control, or management by linking the

accused to the substance through additional facts and circumstances. See Evans v.

State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d

                                            4
402, 406 (Tex. Crim. App. 2005). Whether the State’s evidence is direct or

circumstantial, its evidence of links must establish, to the requisite level of confidence,

that the accused’s connection with the drug was more than just fortuitous. Poindexter,

153 S.W.3d at 405-06 (citing Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App.

1995)); Park v. State, 8 S.W.3d 351, 353 (Tex. App.—Amarillo 1999, no pet.).


      The many factors by which an accused may, under the unique circumstances of

each case, be sufficiently “linked” to the contraband, include: (1) the defendant’s

presence when a search is conducted; (2) whether the contraband is in plain view; (3)

the defendant’s proximity to and the accessibility of the contraband; (4) whether the

defendant was under the influence of contraband when arrested; (5) whether the

defendant possessed other contraband or narcotics when arrested; (6) whether the

defendant made incriminating statements when arrested; (7) whether the defendant

attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there

was an odor of contraband; (10) whether other contraband or drug paraphernalia were

present; (11) whether the defendant owned or had the right to possess the place where

the drugs were found; (12) whether the place where the drugs were found was

enclosed; (13) whether the defendant was found with a large amount of cash; and (14)

whether the conduct of the defendant indicated a consciousness of guilt. Evans, 202

S.W.3d at 162 n.12. See Triplett v. State, 292 S.W.3d 205, 208 (Tex. App.—Amarillo

2009, pet. refused) (listing numerous factors). These factors, however, are simply that:

factors which may circumstantially establish the sufficiency of evidence offered to prove

a knowing “possession.” See Evans, 202 S.W.3d at 162 n.12 (explaining that factors




                                            5
“are not a litmus test”). It is not the number of links that is dispositive, but rather the

logical force of all the evidence. See id. at 162.


       Here, law enforcement obtained a warrant to search the small apartment

appellant shared with Urias. On execution of the warrant, deputies found these two

individuals in the residence’s single bedroom, in its only bed. A nearby closet contained

a safe on which a narcotics sniffing dog alerted. In the bedroom was appellant’s iPhone

containing the safe’s combination. The safe contained enough methamphetamine for

some seventy-seven doses. In the bathroom were pills prescribed to a third party. The

kitchen trash receptacle held plastic bags altered for use in the sale of narcotics.

Appellant’s wallet contained some $384. Urias testified the drugs were hers and she

kept from appellant her use and trafficking in narcotics. But the jury as fact finder was

entitled to judge the credibility of the witnesses and could choose to believe all, some,

or none of the testimony the parties presented. Chambers v. State, 805 S.W.2d 459,

461 (Tex. Crim. App. 1991); Williams v. State, 290 S.W.3d 407, 412 (Tex. App.—

Amarillo 2009, no pet.).


       Viewing all of the evidence under the required standard, we conclude the jury

was free to make rational inferences from the evidence and to conclude appellant

knowingly possessed the methamphetamine. We overrule her first issue.


       In her second issue appellant argues, “The trial court’s failure to correct a police

officer’s misstatement of the law constituted a comment on the weight of the evidence to

be given this officer’s testimony and was not cured by a proper jury instruction.” The




                                             6
complaint is based on the following exchange occurring during the testimony of a

deputy.


       Q. Now, based on your training and experience and just doing your job, is
       there a distinction to be drawn between ownership and, say, possession?
       ***
       [Defense Counsel]: I think he’s asking the [witness] for a legal conclusion.

       The Court: Overruled.

       A. I could be the owner of a car and you drive it; you’re in possession of it.
          Okay? When it comes to a resident of a home, a search warrant is
          conducted, and the two suspects that are on the search warrant are
          there and they both reside at that residence, they’re in possession. It’s
          in their residence and then they also are going to be considered the
          owners of those items.

       Article 38.05 of the Code of Criminal Procedure provides, “In ruling upon the

admissibility of evidence, the judge shall not discuss or comment upon the weight of the

same or its bearing in the case, but shall simply decide whether or not it is admissible;

nor shall he, at any stage of the proceeding previous to the return of the verdict, make

any remark calculated to convey to the jury his opinion of the case.” TEX. CODE CRIM.

PROC. ANN. art. 38.05 (West 1979). It is an improper comment on the weight of the

evidence for a trial court to make a statement implying approval of the State’s argument,

indicating disbelief in the position of the defendant, or diminishing the credibility of the

defendant’s approach to the case. Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—

Houston [14th Dist.] 2006, no pet.).       Rather, when ruling on the admissibility of

evidence, the trial court should abstain from stating anything more than the simple

announcement of its ruling. Id. (citing Wilson v. State, 17 Tex. Ct. App. 525, 1885 Tex.

Crim. App. Lexis 24, at *23 (Tex. Ct. App. 1885)).




                                             7
      Here, in ruling on appellant’s objection the trial judge did exactly as required. He

simply announced his decision and made no comment on the weight of the evidence.

Appellant’s second issue is overruled.


      In her third issue, appellant contends her trial counsel’s conduct of her defense

was ineffective. The argument seems to be that through the admission of the search

warrant and appellant’s lease agreement, the jury was made aware of extraneous

offenses and prior bad conduct involving appellant.


      The adequacy of defense counsel’s assistance is based on the totality of the

representation rather than isolated acts or omissions. Thompson v. State, 9 S.W.3d

808, 814 (Tex. Crim. App. 1999). Although the constitutional right to counsel ensures

the right to reasonably effective counsel, it does not guarantee errorless counsel whose

competency or accuracy of representation is judged by hindsight. Robertson v. State,

187 S.W.3d 475, 483 (Tex. Crim. App. 2006).


      The effectiveness of counsel’s representation is measured by the two-pronged

test enunciated in Strickland v. Washington. 466 U.S. 668, 687 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); see Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)

(adopting Strickland standard in Texas). The first prong of the Strickland test requires

appellant prove counsel made such serious errors that he did not function as the

“counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Appellant

must show that counsel’s performance was unreasonable under prevailing professional

norms and that the challenged action was not sound trial strategy. Id. at 689-90. If

deficient assistance is established, the second Strickland prong requires appellant



                                            8
affirmatively demonstrate prejudice; that is, a reasonable probability that, but for

counsel’s unprofessional errors, the outcome of the case would have been different.

Thompson, 9 S.W.3d at 812. “Reasonable probability” means probability of a degree

sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.


      Our review of counsel’s performance is highly deferential and a strong

presumption exists that counsel’s conduct fell within a wide range of reasonable

professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see

Strickland, 466 U.S. at 689 (noting there are countless ways to provide effective

assistance in any given case).        To overcome the presumption of reasonable

professional assistance, any allegation of ineffectiveness must be firmly rooted in the

record. Thompson, 9 S.W.3d at 813-14. The showing of ineffectiveness must warrant

the conclusion of a reviewing court that counsel’s performance fell below an objective

standard of reasonableness as a matter of law, and that no reasonable trial strategy

could justify counsel’s acts or omissions, regardless of his subjective reasoning. Lopez

v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). In the majority of cases, the

record on direct appeal is inadequate to show that counsel’s conduct fell below an

objectively reasonable standard of performance. See Rylander v. State, 101 S.W.3d

107, 110 (Tex. Crim. App. 2003) (“We have previously stated that the record on direct

appeal will generally not be sufficient to show that counsel’s representation was so

deficient as to meet the first part of the Strickland standard as the reasonableness of

counsel’s choices often involves facts that do not appear in the appellate record”).

“When such direct evidence is not available, we will assume that counsel had a strategy




                                           9
if any reasonably sound strategic motivation can be imagined.” Lopez, 343 S.W.3d 137,

143 (Tex. Crim. App. 2011).


         Here a motion for new trial was not pursued as an avenue for allowing trial

counsel to explain his actions. So we have no discussion on the record of counsel’s

reasons for the allegedly inadequate trial conduct.       Under the Strickland standard,

appellant has not demonstrated that her counsel’s performance fell below an objective

standard of reasonableness. It therefore is unnecessary for us to consider the second

Strickland prong. Appellant’s third issue is overruled.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                 James T. Campbell
                                                     Justice


Do not publish.




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