Opinion issued May 16, 2013




                                   In The

                              Court of Appeals
                                  For The

                       First District of Texas
                        ————————————
                  NOS. 01-12-00726-CR, 01-12-00727-CR
                        ———————————
                    NICODEMO SEGURA, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 183rd District Court
                          Harris County, Texas
                 Trial Court Case Nos. 1326615, 1326616
                           MEMORANDUM OPINION

      A jury found appellant, Nicodemo Segura, guilty of the offenses of

possession with intent to deliver cocaine weighing more than four hundred grams 1

and possession with intent to deliver methamphetamine weighing more than four

hundred grams. 2 The jury assessed his punishment at confinement for twenty

years in the cocaine case and twenty-seven years in the methamphetamine case,

with both sentences to run concurrently. In his sole issue, appellant contends that

he received ineffective assistance of counsel at trial.

      We affirm.

                                     Background

      Houston Police Department (“HPD”) Officer R. Rodriguez testified that on

November 8, 2011, he received information concerning a suspect that possessed

“large amounts of cocaine and crystal meth.” He followed up on the information

and contacted Jose Plancarte, with whom he negotiated, over a telephone call, to

purchase four kilograms of cocaine and two pounds of methamphetamine. On

November 9, Rodriguez briefly met with Plancarte in a parking lot, and Plancarte


1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(5), 481.102(3)(D),
      481.112(a), (f) (Vernon 2010); trial cause number 1326615, appellate cause
      number 01-12-00726-CR.
2
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(5), 481.102(6), 481.112(a),
      (f) (Vernon 2010); trial cause number 1326616, appellate cause number 01-12-
      00727-CR.
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stated that he would return later with the requested narcotics. Appellant was not at

Rodriguez’s first meeting with Plancarte.

      One of the officers conducting surveillance of Plancarte reported that a

person driving a white Jeep later placed a laptop case into Plancarte’s blue pickup

truck. Shortly thereafter, Plancarte drove his truck, with appellant sitting in the

passenger’s seat, back into the parking lot. Officer Rodriguez approached the

passenger side window of the truck, Plancarte told him that the narcotics were in

the back seat, and Rodriguez then entered the truck, but had difficulty opening the

case. Appellant then said, “Let me get it open,” and he reached back to help open

it. Rodriguez saw both the cocaine and methamphetamine packaged in the case,

and he asked Plancarte and appellant, “Is it good?” Both men replied, “Of course,

yes, it’s good.” Rodriguez told them that his “money man” was around the corner,

and he could complete the purchase there. After Plancarte and appellant drove

away from the parking lot, Rodriguez and the officers conducting surveillance

stopped and arrested both men.

      On cross-examination, Officer Rodriguez admitted that he did not include

the fact that appellant had spoken during the transaction in his offense report. And

he conceded that, because the narcotics were contained in the case, “any individual

who was actually just sitting in that car wouldn’t actually have knowledge of what

was inside that [case] unless they looked inside.” Rodriguez then explained that

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methamphetamine has a distinctive smell that he detected when he opened the

truck door.

      HPD Officer A. Duncan testified that on November 9, 2011, he was

dispatched to assist Officer Rodriguez in conducting an arrest. When he arrived at

the scene, Duncan took photographs of the evidence recovered from Plancarte’s

truck. Among the items was a handgun seized from underneath the passenger seat.

Duncan also field-tested the narcotics recovered from the truck, and the test

confirmed the narcotics consisted of cocaine and methamphetamine. Ahtavea

Baker, a criminalist in the controlled substance section of the HPD Crime

Laboratory, testified that she tested the narcotics recovered from Plancarte’s car.

The methamphetamine weighed 904.7 grams, and the cocaine weighed 3,865.5

grams.

      Appellant testified that he and Plancarte had been friends from the time

when they both lived in Mexico. He explained that Plancarte had invited appellant

to his automobile repair shop to offer him a job as an assistant mechanic. And, on

November 9, 2011, appellant, bringing his wife and daughter, followed Plancarte

to the shop. When appellant got into Plancarte’s truck, Plancarte drove them to a

car wash, where a person handed Plancarte a laptop case. Appellant did not

recognize the person or look inside the case, and he thought that the person had

given Plancarte a computer. Plancarte then walked across the street and spoke to a

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man, later identified to be Officer Rodriguez, in a white truck. Rodriguez later

approached Plancarte’s truck, and Plancarte directed him to the case in the back

seat. After Rodriguez opened the case, he agreed to meet Plancarte at a nearby

stereo shop. Appellant noted that he did not speak with Rodriguez.

                               Standard of Review

      The standard of review for evaluating claims of ineffective assistance of

counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). Strickland generally requires a two-step analysis in which an

appellant must show that (1) counsel’s performance fell below an objective

standard of reasonableness, and (2) but for counsel’s unprofessional error, there is

a reasonable probability that the result of the proceedings would have been

different. Id. at 687–94, 104 S. Ct. at 2064–68; Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). A reasonable probability is a “probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068.   In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that his performance falls within the wide range of reasonable

professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. Appellant has the




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burden to establish both prongs by a preponderance of the evidence. Jackson v.

State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

      A failure to make a showing under either prong defeats an ineffective-

assistance claim. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.

2003). Moreover, allegations of ineffectiveness must be firmly founded in the

record. Thompson, 9 S.W.3d at 814; Bone v. State, 77 S.W.3d 828, 835 & n.13

(Tex. Crim. App. 2002). When the record is silent, we may not speculate to find

trial counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001). In the absence of evidence of counsel’s reasons for the challenged conduct,

an appellate court commonly will assume a strategic motivation if any can possibly

be imagined and will not conclude that the challenged conduct constituted deficient

performance unless the conduct was so outrageous that no competent attorney

would have engaged in it. See id.

                        Ineffective Assistance of Counsel

      In his sole issue, appellant argues that his trial counsel denied him effective

assistance because he failed to “object to the State’s leading questions and

inadmissible hearsay evidence.”      Specifically, appellant asserts that his trial

counsel did not object to Officer Rodriguez’s testimony regarding Plancarte’s

statements to him during the transaction.




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      Here, appellant did not move for a new trial, and there is nothing in the

record to indicate why trial counsel did not object to Officer Rodriguez’s

testimony. Appellant nevertheless asserts that “there was no excuse for the failures

to object and then move for a mistrial” and “[t]here is no reasonable trial strategy

that would permit such harmful, inadmissible evidence to be introduced to the jury

without objection.”

      Appellant cites to several places in the record that he asserts reveal

“inadmissible and damaging” testimony. For example, appellant complains of the

following testimony from Officer Rodriguez:

      Okay. In talking to Mr. Plancarte, I negotiated a large amount or
      multi kilos of cocaine, the purchase of multi kilos of cocaine in
      addition to 2 pounds of ice. I told him that we needed to meet him so
      that we could, you know, talk about this in person. I would like to see
      him in person, and he agreed. Went to a location. We met in a
      parking lot. We talked briefly. And he told me that he would return
      later on with the product that I requested.

Later, Rodriguez testified that Plancarte told him that “he had the ice or the meth

was there, but he was still waiting on the 4 kilos of cocaine,” he would “find out” if

he had enough cocaine, he “was getting the 4 kilos . . . on the south side of the

street from a buddy of his,” and Rodriguez could retrieve the narcotics from the

back seat of the truck. Finally, Rodriguez testified,

      The plan was for them to get out on the street and have a marked unit
      stop the vehicle. But as it turns out, they pulled into a business and
      backed into a stereo shop, which they suggested, “Hey, look. I know

                                          7
      a stereo business there. Just call him over there and we’ll make the
      exchange.” I said, “Okay.”

Trial counsel did object on hearsay grounds when Officer Rodriguez testified that

both Plancarte and appellant told him that the narcotics consisted of “good stuff,”

but the trial court overruled the objection. And appellant also complains that

Rodriguez testified that the officers conducting surveillance informed him that

Plancante “might be heading your way.”

      Because the record is silent as to trial counsel’s reasons for not objecting to

the above evidence, we will affirm the trial court’s judgment if there is a possibility

that counsel’s conduct could have been grounded in legitimate trial strategy.

Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007); Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994). At trial, most, if not all, of the above

evidence was admissible under exceptions to the rule precluding the admission of

hearsay. See TEX. R. EVID. 801(e)(2), 803(24). Moreover, appellant’s defensive

theory at trial was that he only accompanied Plancarte to the transaction because he

thought that he would be offered employment and the transaction was negotiated

entirely by Plancarte. Appellant testified that he did not see the narcotics or know

that a narcotics transaction was taking place.       Thus, trial counsel could have

decided that an objection to the testimony would have been futile or it could have

been a reasonable trial strategy. See Garza, 213 S.W.3d 347–48 (holding that

counsel’s decision not to object to hearsay testimony could have been part of
                                          8
reasonable trial strategy); Applin v. State, 341 S.W.3d 528, 534–35 (Tex. App.—

Fort Worth 2011, no pet.) (holding that court could not conclude that trial

counsel’s decision not to object to hearsay testimony was unreasonable). And

although appellant now asserts that “the requisite amount of contraband” was “the

critical issue” in the case, he, at trial, contended only that he had no knowledge of

the transaction. He did not claim that he possessed less than four hundred grams of

either cocaine or methamphetamine.

      We cannot conclude that trial counsel’s conduct was so outrageous that no

competent attorney would have engaged in it. See Garcia, 57 S.W.3d at 440.

Accordingly, we hold that appellant has not satisfied the first prong of Strickland.

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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



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