                        NUMBER 13-15-00123-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


LUCAS MORIN,                                                            Appellant,

                                       v.

THE STATE OF TEXAS,                                                      Appellee.


                  On appeal from the 156th District Court
                         of Bee County, Texas.


                       MEMORANDUM OPINION
 Before Chief Justice Contreras and Justices Longoria and Hinojosa
         Memorandum Opinion by Chief Justice Contreras

      A jury convicted appellant Lucas Morin of possession of methamphetamine in the

amount of one gram but less than four grams, a third-degree felony. See TEX. HEALTH &

SAFETY CODE ANN. § 481.115(a), (b) (West, Westlaw through 2017 1st C.S.). The trial
court sentenced Morin to twenty-eight years’ incarceration.1 By three issues, Morin

contends that the evidence was insufficient to link him to the contraband, that his trial

counsel rendered ineffective assistance, and that his previous appellate counsel was

ineffective. We affirm.

                                        I.       BACKGROUND

        Detective Art Gamez with the Beeville Police Department testified that on

September 3, 2014, at 2:00 a.m. while conducting surveillance of several rooms at a local

Executive Inn used by John Michael Campos (Campos) for narcotics dealing, he

observed Morin and his codefendants, Emily Arredondo (Emily), Amber Garcia (Garcia),

and Joe Angel Arredondo (Joe), a suspected drug dealer, leaving the “known drug house,

a known apartment” in a vehicle.2 Detective Gamez advised the patrol division to initiate

a traffic stop of the vehicle. Detective Gamez testified that he then observed the vehicle

park at a local Walmart. At this point, Detective Gamez returned to his surveillance duty

and “left it up to the patrol division.”

        Sergeant Joshua Meakins of the Beeville Police Department testified that, after the

vehicle left the Walmart parking lot, he initiated a traffic stop because he observed the

driver commit several violations. Sergeant Meakins stated that the driver stopped the

vehicle at a local convenience store; when the vehicle stopped, Morin, who was seated

in the back seat on the passenger side, “exited the vehicle and ran,” and Sergeant

Meakins chased after him. Sergeant Meakins stated that when he apprehended Morin


        1 Morin’s sentence was enhanced under the habitual felon statute requiring a minimum twenty-five-

year sentence. See TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw through 2017 1st C.S.).
        2During Morin’s case-in-chief, Campos’s aunt claimed that Morin lived with Campos. However,
Sergeant Joshua Meakins testified that in the arrest report Morin stated he lived at a different residence
and did not state that he lived at the Executive Inn with Campos.


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he found a pipe in Morin’s front right pocket that Morin acknowledged was his. Sergeant

Meakins testified that the type of pipe found in Morin’s possession is commonly used to

smoke methamphetamine.3              Sergeant Meakins stated that Emily drove the vehicle,

Garcia sat in the front right passenger side of the vehicle, and Joe sat in the rear left

passenger side.

        Assistant Police Chief Richard Cantu Jr. testified that he arrived at the convenience

store for backup after learning that Sergeant Meakins was involved in a foot pursuit. Chief

Cantu explained that when he approached the vehicle he saw Joe sitting in the backseat

on the left side, and in plain view, he saw a syringe that Joe attempted to conceal

“underneath his right buttocks.” Chief Cantu removed the syringe, secured it on top of

the vehicle, and “observed a handgun immediately in front of [Joe] which was [in] the rear

compartment of the driver’s seat.” During Chief Cantu’s testimony, a picture admitted into

evidence was shown to the jury of the back seat of the vehicle. Chief Cantu explained

that he found the gun in the compartment behind the front seat and the “handle was

sticking in the upright position.”

        Chief Cantu said, “After the occupants were removed from the vehicle . . . I then

proceeded to do an instant search of the vehicle pursuant to arrest and as I was doing

that, in plain view, I called it a middle console, but it was an area between the driver’s

seat and the passenger’s seat [where] I observed a small clear plastic baggie containing

white rock substance, and based on my experience and my training, that led me to believe

it was methamphetamine.” Chief Cantu agreed with the prosecutor that there was nothing



        3 John Berry, an officer with the Beeville Police Department, testified that Morin told him that the

pipe found in his possession was used for smoking meth.


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covering the compartment, and the trial court admitted a picture of the compartment

showing it does not have a lid or a cover. Next to the baggie, Chief Cantu “observed a

small glass instrument which appeared to be a smoke pipe.” Chief Cantu agreed with the

prosecutor that the baggie was “within arm’s reach of all four of the people seated in the

vehicle.” Chief Cantu testified that, because the drugs were found within arm’s reach of

all the occupants of the vehicle, they were all arrested for possession.4

                               II.     SUFFICIENCY OF THE EVIDENCE

        By his first issue, Morin contends that the evidence is legally insufficient to support

that he intentionally or knowingly possessed the methamphetamine because there is no

evidence linking him to the contraband. See Roberson v. State, 80 S.W.3d 730, 735

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

A.      Standard of Review and Applicable Law

        In evaluating the legal sufficiency of the evidence, we must 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. 5

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). “A person

may not be convicted of possession of a controlled substance, as a principal actor, unless

(1) he exercised actual care, control, or custody of it, and (2) he was conscious of his




        4 Roman Gonzales Jr. with the Texas Department of Public Safety crime lab testified that the baggie
found in the vehicle had 2.30 grams of methamphetamine.
        5 We measure the sufficiency of the evidence by the elements of the offense as defined by a
hypothetically correct jury charge. As indicted in this case, a person commits the offense of possession of
a controlled substance if the person knowingly or intentionally possesses a controlled substance listed in
Penalty Group 1 of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a),
(b) (West, Westlaw through 2017 1st C.S.). Methamphetamine is listed as a controlled substance in Penalty
Group 1. See id. § 481.102(6) (West, Westlaw through 2017 1st C.S.).


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connection with it and knew what it was.” Roberson, 80 S.W.3d at 734–35 (citing Brown

v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Exclusive possession of the drug

is not required. Id. at 735 (citing Harvey v. State, 487 S.W.2d 75, 77 (Tex. Crim. App.

1972)). Mere presence at a place where contraband is being used or possessed by

others does not justify finding that a person is in joint possession or is a party to an

offense. Id.

       “When, as here, the accused is not in exclusive possession of the place where

contraband is found, there must be additional independent facts and circumstances which

affirmatively link the person to the contraband in such a way that it can be concluded that

the accused had knowledge of the contraband and exercised control over it.” Id.; see

Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005). A reasonable

inference can be made from an affirmative link that the accused knew of the contraband’s

existence and exercised control over it. Roberson, 80 S.W.3d at 735 (citing Johnson v.

State, 658 S.W.2d 623, 627 (Tex. Crim. App. 1983); Dickerson v. State, 866 S.W.2d 696,

700 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d)).

       Texas courts have recognized many non-exhaustive factors that may, either singly

or in combination, show the accused’s affirmative link to contraband. Id. “[T]he number

of linking factors present is not as important as the ‘logical force’ they create to prove that

the crime was committed.” Id. Such factors include, among others: (1) the defendant’s

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

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

defendant attempted to flee; (5) whether other contraband or paraphernalia were present;




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and (6) whether the conduct of the defendant indicated a consciousness of guilt. Evans

v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).

B.     Analysis

       The additional independent facts and circumstances here show that Detective

Gamez saw Morin leaving a known “drug house” with a suspected drug dealer.

Thereafter, Morin was found in a vehicle that contained methamphetamine, which Chief

Cantu found in plain view within Morin’s reach. See Tate v. State, 500 S.W.3d 410, 417

(Tex. Crim. App. 2016) (finding a link when the drugs and syringe were in plain view and

conveniently accessible to the appellant). Sergeant Meakins initiated the traffic stop of

the vehicle, and when the vehicle stopped, Morin exited the vehicle and attempted to flee.

See Evans, 202 S.W.3d at 162 n.12 (listing the defendant’s attempt to flee as an

affirmative link).   Sergeant Meakins found a pipe for smoking methamphetamine in

Morin’s pocket that Morin acknowledge belonged to him. See id. (setting out that factor

that may show an affirmative link to contraband includes whether drug paraphernalia is

present). In addition, evidence was presented that Morin lived with Campos, the person

who Detective Gamez was investigating for dealing drugs at the Executive Inn. Morin did

not tell Sergeant Meakins that he lived with Campos and instead said he lived at another

residence—evidence supporting a finding that Morin lied to Sergeant Meakins and which

leads to a reasonable inference that Morin had a consciousness of guilt.            See id.

(providing that a consciousness of guilt may link the defendant to the contraband).

       We conclude that the logical force of the evidence is sufficient to affirmatively link

Morin to the contraband. See Roberson, 80 S.W.3d at 735. Under these circumstances,

the evidence established that Morin exercised care, control, and management over the



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contraband and knew that the substance was contraband. See id. at 734–35. Thus,

viewing the evidence in the light most favorable to the verdict, a rational trier of fact could

have found beyond a reasonable doubt that Morin committed the offense of possession

of a controlled substance. See Brooks, 323 S.W.3d at 899. The evidence is therefore

sufficient to support the verdict. See id. We overrule appellant’s first issue.

                        III.   INEFFECTIVE ASSISTANCE OF COUNSEL

       By his second issue, Morin contends that his trial counsel rendered ineffective

assistance by failing to call a necessary witness. By his third issue, Morin contends that

his previous appellate attorney rendered ineffective assistance by failing to pursue an

evidentiary hearing on Morin’s pro se motion for new trial.

A.     Standard of Review and Applicable Law

       An ineffective assistance of counsel claim is evaluated under the two-part test

articulated by the United States Supreme Court in Strickland v. Washington, requiring

that (1) the appellant show that counsel’s performance was deficient, or that counsel’s

assistance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s errors, the result would have been different.

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland v.

Washington, 466 U.S. 668 (1984)). In determining the validity of the appellant’s claim of

ineffective assistance of counsel, “any judicial review must be highly deferential to trial

counsel and avoid the deleterious effects of hindsight.” Id. at 813.

       The burden is on the appellant to prove ineffective assistance of counsel by a

preponderance of the evidence.          Id.   The appellant must overcome the strong

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



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assistance and that his actions could be considered sound trial strategy. See Strickland,

466 U.S. at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006,

no pet.). A reviewing court will not second-guess legitimate tactical decisions made by

trial counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (“[U]nless

there is a record sufficient to demonstrate that counsel’s conduct was not the product of

a strategic or tactical decision, a reviewing court should presume that trial counsel’s

performance was constitutionally adequate . . . .”). Counsel’s effectiveness is judged by

the totality of the representation, not by isolated acts or omissions. Thompson, 9 S.W.3d

at 813; Jaynes, 216 S.W.3d at 851. An allegation of ineffectiveness must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011); Bone

v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 (setting

out that “in the vast majority of cases, the undeveloped record on direct appeal will be

insufficient for an appellant to satisfy the dual prongs of Strickland”); see Jackson v. State,

877 S.W.2d 768, 771–72 (Tex. Crim. App. 1994) (en banc) (stating that “we must presume

that counsel is better positioned than the appellate court to judge the pragmatism of the

particular case, and that he made all significant decisions in the exercise of reasonable

professional judgment” and that “[d]ue to the lack of evidence in the record concerning

trial counsel’s reasons” for the alleged ineffectiveness, the court was “unable to conclude

that appellant’s trial counsel’s performance was deficient”) (internal quotations omitted).

B.     Exculpatory Witness

       Morin argues that his trial counsel was ineffective by failing to fully investigate the

alleged recipient of a confession made by Emily or to call that person to testify.



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Specifically, Morin claims that Emily wrote a confession letter to the Beeville Police

Department, and his trial counsel failed to call the witness who received the letter.

However, no evidence was presented to the trial court that Emily wrote the letter or that

she sent the letter to the Beeville Police Department. Morin merely points out that his trial

counsel asked Emily if she had written a letter to the Beeville Police Department, but

Emily invoked her fifth amendment right to silence and did not answer this question. See

Madden v. State, 242 S.W.3d 504, 514 (Tex. Crim. App. 2007) (“It is only answers that

are evidence and may create a dispute.”); Johnston v. State, 230 S.W.3d 450, 456 n.6

(Tex. App.—Fort Worth 2007, no pet.) (explaining that defense counsel’s questions do

not constitute evidence). In addition, Morin points to Garcia’s testimony that Emily wrote

a letter. However, Garcia testified that she was asleep when Emily allegedly wrote a

letter, and she was not aware of the contents of the letter. Finally, Morin points to his pro

se motion for new trial that asserted that Emily’s confession was faxed to “Lt. Bernal” of

the Beeville Police Department. However, there is no evidence in the record supporting

the assertion that Emily faxed a letter to “Lt. Bernal.”

        As nothing in the record supports Morin’s claims that Emily sent a letter to the

Beeville Police Department exonerating him or confessing to the charged offense, we

conclude that Morin has not met his high burden of showing that his trial counsel’s

performance was deficient in this regard.6 We overrule Morin’s second issue.


         6 We note that Morin attached a letter to his pro se motion for new trial allegedly written by Emily

stating, “I take full responsibility for the meth . . . found 9-3-14 in the car” and that Morin and the other
occupants of the vehicle “had nothing like myself.” However, a motion for new trial is not self-proving, and
an attachment, even an affidavit, to a motion for new trial is merely “‘a pleading that authorizes the
introduction of supporting evidence’ and is not evidence itself.” Jackson v. State, 139 S.W.3d 7, 20 (Tex.
App.—Fort Worth 2004, pet. ref’d). Accordingly, we are unable to conclude on this record that the letter
constitutes evidence supporting Morin’s ineffective assistance claim. See id. And, even assuming that
Emily wrote the letter, there is no evidence that she sent it to “Lt. Bernal” or the Beeville Police Department.


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C.      Pro se Motion for New Trial

        By his third issue, Morin argues that his previous appellate counsel was ineffective

by failing to present his pro se motion for new trial to the trial court. However, when Morin

filed his pro se motion for new trial, he was represented by counsel. Thus, Morin’s filing

of a pro se motion for new trial constituted hybrid representation.

        A defendant has no right to hybrid representation, and “as a consequence, a trial

court is free to disregard any pro se motions presented by a defendant who is represented

by counsel.” Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). In addition,

“a trial court’s decision not to rule on a [hybrid] motion [is] not subject to [appellate]

review. . . .” Id. Accordingly, Morin is unable to show that his previous appellate counsel

was deficient by failing to present his pro se motion for new trial to the trial court as the

there is nothing in the record showing that the trial court would have allowed hybrid

representation or would have ruled on the motion. See Thompson, 9 S.W.3d at 814.

Moreover, the record is silent regarding Morin’s previous appellate counsel’s reasons for

declining to do so. Therefore, we must presume that counsel’s conduct was the product

of a strategic or tactical decision and constitutionally adequate. Morales, 253 S.W.3d at

696. We overrule Morin’s third issue.7




         7 Given that “[t]he reasonableness of counsel’s choices often involve facts that do not appear in the

appellate record,” “[a] petition for writ of habeas corpus usually is the appropriate vehicle to investigate
ineffective-assistance claims.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc). “In
most ineffective[-]assistance claims, a writ of habeas corpus is essential to gathering the facts necessary
to adequately evaluate such claims.” Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); see
also Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“A substantial risk of failure
accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a
reviewing court be provided the opportunity to make its determination on direct appeal with a record capable
of providing fair evaluation of the merits of the claim . . . .”).


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                                   IV.     CONCLUSION

       We affirm the trial court’s judgment.

                                                        DORI CONTRERAS
                                                        Chief Justice


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

Delivered and filed the
31st day of January, 2019.




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