                                      NOS. 12-15-00040-CR
                                           12-15-00041-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

MARCUS DONEL POLLEY,                                    §       APPEALS FROM THE
APPELLANT

V.                                                      §       COUNTY COURT AT LAW

THE STATE OF TEXAS,
APPELLEE                                                §       NACOGDOCHES COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Marcus Donel Polley appeals his convictions for driving while intoxicated and possession
of marijuana. In two issues, Appellant argues that he received ineffective assistance of counsel.
We affirm.


                                                BACKGROUND
        Just before noon on October 10, 2013, while mowing the lawn at a rental property he
owned, Charles Curl was disturbed by a vehicle that suddenly drove onto the lawn. The
vehicle’s lone occupant jumped out of the vehicle and pointed what Curl believed to be a
handgun at him.1 Curl recognized the driver as Appellant, his friend. Appellant momentarily sat
back down in the car. But he then exited the vehicle and again made the threatening gesture at
Curl. Appellant reentered the vehicle, backed up quickly, struck a tree in Curl’s yard, and sped
away.



        1
           Police officers later discovered that Appellant did not have a firearm. He appeared to have used a hand
gesture or held some device in his hand that resembled a handgun.
        Curl, who was in distress, called 911 and described what happened to him. Moments
later, the police received another call that a vehicle had just crashed into a chain link fence not
far from Curl’s home. Sergeant Keith Hawkins found the vehicle parked at a home with
Appellant seated in the driver’s seat. Sergeant Hawkins noticed that the chain link fence was
under the vehicle, and the vehicle had been damaged. Corporal Al Patterson also arrived on the
scene and began investigating the accident.
        Based on the calls they received, the officers asked for and obtained Appellant’s consent
to search the vehicle.        Sergeant Hawkins searched the vehicle while Corporal Patterson
continued talking to Appellant. Sergeant Hawkins discovered a bag containing marijuana in the
rear passenger floorboard. The officers did not disclose this to Appellant until they arrested him.
        Although Appellant was conscious and standing on his own, both officers noticed that he
was lethargic, sluggish, and seemingly confused. Due to the circumstances and Appellant’s
condition, the officers called for an ambulance to render assistance to him, but he refused
treatment. After talking with Appellant, both officers detected an odor from his breath that,
based on their experience, led them to believe that Appellant was under the influence of PCP.
Appellant also answered questions inconsistently.2 After Appellant realized that the officers had
begun to investigate whether Appellant was driving while intoxicated (DWI), he declined to
answer further questions. Corporal Patterson attempted to perform field sobriety tests, but
Appellant refused.3 Corporal Patterson then requested a blood sample from Appellant, which he
declined to provide.
        The officers arrested Appellant, transported him to the police station, and obtained a
warrant authorizing that a blood specimen be taken. Appellant was then transported to the
hospital where a nurse took a blood sample. The specimen tested positive for PCP.
        Appellant was charged by information for driving while intoxicated and possession of
marijuana in separate cases. He pleaded “not guilty” to both offenses, and the cases proceeded to
a jury trial. The jury found Appellant guilty of both offenses. After a hearing, the trial court
assessed punishment at ninety days of confinement in the county jail for the possession of a


        2
          For example, Appellant initially admitted that he drove the vehicle, but later stated that he did not.
Appellant also initially failed to confirm his identity.

        3
          Corporal Patterson testified that he observed Appellant exhibit “resting nystagmus” while talking with
him, which he believed to be consistent with PCP use.


                                                       2
marijuana charge, and 150 days of confinement in the county jail for the DWI charge. This
appeal followed.


                             INEFFECTIVE ASSISTANCE OF COUNSEL
       Appellant argues in his first issue that he received ineffective assistance of counsel
because his trial counsel failed to contest the method by which Corporal Patterson obtained the
warrant, and failed to object that the warrant was not produced at trial.
       In his second issue, Appellant contends that trial counsel was constitutionally ineffective
when he failed to challenge the State’s evidence that he knowingly or intentionally possessed
marijuana. Because Appellant alleges in both issues that he received ineffective assistance of
counsel, we address them together.
Standard of Review and Applicable Law
       Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms. See Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel’s representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
       In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).       We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. Appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. Appellant cannot meet this burden if the record does not affirmatively support the
claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A record that
specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an




                                                 3
ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.]
1994, pet. ref’d).
        Before being condemned as unprofessional and incompetent, defense counsel should be
given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828, 836 (Tex.
Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim
must usually be denied as speculative, and, further, such a claim cannot be built upon
retrospective speculation. Id. at 835.
        Moreover, after proving error, the appellant must affirmatively prove prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The
appellant must prove that his attorney’s errors, judged by the totality of the representation and
not by isolated instances of error, denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not
enough for the appellant to show that the errors had some conceivable effect on the outcome of
the proceedings. Id. He must show that there is a reasonable probability that, but for his
attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the extent of
his punishment would have been less. See id.; see also Bone, 77 S.W.3d at 837.
Blood Specimen Search Warrant
        Appellant argues that the blood specimen test results were the central piece of evidence in
the State’s case, and that it could not obtain a conviction without the results. Appellant’s
argument continues that the warrant was not admitted into evidence, and without it, the probable
cause stated in Corporal Patterson’s affidavit is unknown. Appellant also contends that trial
counsel should have objected when Corporal Patterson testified that he faxed the affidavit and
warrant application to the judge. Appellant argues that this procedure rendered the warrant
ineffective because it failed to satisfy the requirement that the officer provide the magistrate with
a “sworn affidavit” prior to obtaining a warrant. See TEX. CRIM. PROC. CODE ANN. art. 18.01(b)
(West 2015).
        The record shows that Corporal Patterson testified that he “fill[ed] out the search warrant,
g[o]t that filled out, [f]ax[ed] it to the Judge. The Judge [f]axes it. Back we go to the hospital.
We draw the blood and then we go to the jail.” The corporal also stated later in his testimony
that in drafting the affidavit, he included “a [w]hole understanding of the circumstances,
explaining to the Judge from the beginning why we were called out, what we saw, all the



                                                 4
evidence that we have to believe that he is intoxicated. And we put that in the search warrant.”
Corporal Patterson testified that he explained in the affidavit what he had learned during his
investigation, and described the evidence leading him to believe that Appellant was intoxicated.
He also testified that he obtained the warrant. The trial judge was the magistrate who issued the
warrant in this case. There is no requirement per se that the warrant be produced at trial.
         Trial counsel did not inquire further into the circumstances surrounding Corporal
Patterson’s acquisition of the blood warrant. The record is silent about trial counsel’s reasons for
not pursuing the matter, but there is a strong presumption that counsel’s decision was based on
sound trial strategy. See Jackson, 877 S.W.2d at 771; Kemp, 892 S.W.2d at 115. Therefore,
Appellant has failed to rebut the presumption.
         Moreover, the affidavit satisfies the memorialization requirement when it is faxed to the
judge.    Clay v. State, 391 S.W.3d 94, 100 (Tex. Crim. App. 2013) (“Article 18.01(b)’s
requirement that the memorialization take the form of a written affidavit was satisfied in this
case by the fact that [the officer] drafted a written affidavit and faxed it to [the magistrate], so
that the issuing magistrate had a document to be ‘filed’ as required.”). Furthermore, the oath of
the person making the “sworn affidavit” contemplated by Article 18.01(b) need not always be
administered in the corporal presence of the magistrate, so long as sufficient care is taken in the
individual case to preserve the same or an equivalent solemnizing function to that which corporal
presence accomplishes. See id. at 103. In Clay, the evidence showed that the officer and the
magistrate were familiar with each other’s voices, and consequently, the telephonic warrant
application process satisfied Article 18.01(b). See id. The record in the instant cases is silent on
that issue.
         But even if trial counsel was ineffective in failing to inquire whether the “sworn
affidavit” requirement was satisfied, a question we do not reach, Appellant failed to show that he
suffered prejudice by his trial counsel’s representation. Curl testified that Appellant suddenly
drove onto his lawn and pointed what he believed to be a handgun at him. Appellant sped away,
hitting a tree in the process. Moments later, the officers found Appellant in his damaged vehicle,
where he had just crashed into a fence. While talking to him, the officers noticed that Appellant
was lethargic and seemed confused. They also smelled the odor of PCP, which they recognized
from their experience. Corporal Patterson also observed “resting nystagmus” while talking to
Appellant, which he believed to be indicative of PCP use. Given this information, the officers



                                                 5
had probable cause to believe that Appellant was operating a motor vehicle while not having the
normal use of his physical and mental faculties. Additionally, Curl testified that Appellant told
him two weeks after the incident that he was sorry for his behavior and admitted that he was
under the influence of PCP at the time. Curl also testified that Appellant was known to consume
PCP.
       Even without the blood warrant test results, and assuming counsel’s representation was
constitutionally defective in this regard, we cannot conclude that there is a reasonable probability
that, but for his attorney’s errors, the jury would have had a reasonable doubt about his guilt. See
Bone, 77 S.W.3d at 837.
Possession of Marijuana
       Appellant contends further that trial counsel should have objected to and contested the
State’s theory that he knowingly or intentionally possessed marijuana. Specifically, Appellant
contends that his trial counsel should have objected to the prosecutor’s closing argument that
Appellant consciously threw the marijuana in the backseat to avoid its detection because it is
inconsistent with the evidence. This is because Appellant claims that the video of the arrest
shows he was disoriented, lethargic, and unresponsive when police made contact with him,
implying that he could not have intentionally or knowingly possessed the marijuana. In essence,
Appellant argues that the evidence is inconsistent with the State’s theory.
       The record does not demonstrate the reasoning behind trial counsel’s decision to refrain
from objecting to this argument, and we presume that this decision was based on reasonable trial
strategy. See Jackson, 877 S.W.2d at 771; Kemp, 892 S.W.2d at 115. Corporal Patterson
obtained Appellant’s consent to search the vehicle.        While he continued to interact with
Appellant, Sergeant Hawkins conducted the search and discovered marijuana in plain view on
the back seat floorboard. The officers testified that marijuana cigarettes are often dipped in PCP
to create a combined drug referred to as “wet.” Corporal Patterson asked, prior to the marijuana
discovery, whether Appellant had been smoking “wet” based on his behavior and the odor
emanating from his breath, which Appellant denied. The corporal opined that he believed
someone in Appellant’s circumstances “possessed” the marijuana and that someone in his
position could have thrown the marijuana in the rear passenger seat to conceal it.             The
prosecutor’s argument can be classified as a reasonable summary and deduction from the
evidence, neither of which are objectionable. See Brown v. State, 270 S.W.3d 564, 570 (Tex.



                                                 6
Crim. App. 2008) (describing permissible grounds for jury argument, including a summary of the
evidence and reasonable deductions from the evidence).
       Appellant also seems to argue that trial counsel should have objected when Corporal
Patterson opined that someone in Appellant’s situation had knowingly possessed the marijuana
and that it was in his care, custody, and control. Possession means actual care, custody, control
or management. TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West Supp. 2014). To
prove that Appellant possessed the marijuana, the State was required to show that he exercised
actual care, custody, control, or management over it, he was conscious of his connection to it,
and he knew what it was. See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011);
Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); see also TEX. PENAL CODE ANN.
§ 6.03(a), (b) (West 2011) (defining intentionally and knowingly).
       There are several factors by which a defendant may, under the unique circumstances of
each case, be sufficiently linked to the contraband, including (1) the defendant’s presence when a
search is conducted; (2) whether the contraband was 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. See Evans, 202 S.W.3d at 162, n.12. It is not
the number of links that is dispositive, but rather the logical force of all the evidence, direct and
circumstantial. Id. at 501. The force of the links need not be such as to exclude every other
alternative hypothesis except the defendant’s guilt. See Brown v. State, 911 S.W.2d 744, 748
(Tex. Crim. App. 1995).
       In the instant case, Appellant was the lone occupant of the vehicle when the officers
arrived, and he was present when the search was conducted. Sergeant Hawkins discovered the
marijuana in plain view of the rear right passenger floorboard, an area Appellant could reach
from the driver’s seat. Appellant appeared to be under the influence of drugs when arrested. It



                                                 7
appears from the record that the vehicle belonged to Appellant. Appellant answered questions
inconsistently and acted in an abnormal manner while talking with the officers. The logical force
of all the evidence leads to the conclusion that the jury could have reasonably deduced from the
evidence that Appellant intentionally or knowingly possessed the marijuana, and any objection
lodged by trial counsel would have been fruitless.
         Since the prosecutor’s argument and the conclusions drawn from the evidence that he
possessed the marijuana were not objectionable, Appellant has not shown that counsel’s
representation was constitutionally deficient. In any event, the record does not demonstrate the
reasoning behind trial counsel’s actions.
         Appellant’s first and second issues are overruled.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered August 12, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           AUGUST 12, 2015


                                         NO. 12-15-00040-CR


                                    MARCUS DONEL POLLEY,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the County Court at Law
                     of Nacogdoches County, Texas (Tr.Ct.No. CF1400013)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           AUGUST 12, 2015


                                         NO. 12-15-00041-CR


                                    MARCUS DONEL POLLEY,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the County Court at Law
                     of Nacogdoches County, Texas (Tr.Ct.No. CF1400014)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
