                                    NO. 07-03-0377-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                     AUGUST 30, 2004

                          ______________________________


                         DAVID LEE FOSTER, JR., APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

           FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                    NO. 10,295; HONORABLE TOM NEELY, JUDGE

                          _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       Appellant David Lee Foster, Jr., having waived his right to a jury trial, pleaded guilty

without the benefit of a plea bargain to manufacturing a controlled substance, and the trial

court found him guilty and assessed a sentence of 20 years confinement. With four points

of error, appellant claims he was denied effective assistance of counsel, the evidence is
legally insufficient to support his conviction, and his conviction should be reversed because

the attorney for the State committed prosecutorial misconduct. We affirm.


       On February 13, 2003, Larry Lee, an officer with the Wilbarger County Sheriff’s

Department, received a phone call reporting a “possible meth lab actually in the process

of making meth” at a residence in Oklaunion, Texas. When he arrived, Lee noticed a

pickup truck backed up to a shed at the rear of the property. He then observed three

people run out of the building, get into the pickup, and attempt to leave. Lee and another

officer who responded to the scene apprehended the three individuals and identified them

as appellant, who was the driver, appellant’s wife, Maria Foster, and appellant’s partner,

Cesilio Gonzales. Inside the truck, Lee discovered a “fully loaded” pistol in a pouch on the

driver’s door and an SKS, “high powered semi-automatic rifle” behind the seat. When

officers entered the shed, they located a working “clandestine methamphetamine lab.” The

officers seized several jars of chemicals, which were later analyzed and determined to

contain methamphetamine and cocaine in various levels of concentration.              At trial,

appellant consented to a stipulation of evidence admitting each of the elements of the

offense contained in the indictment. He further testified during the punishment phase and

freely admitted that: (1) he had a drug problem; (2) the guns seized from the crime scene

were his; (3) he manufactured the drugs at issue in this case; (4) he became “interested

in cooking dope and using the dope” when he was fifteen or sixteen; and (5) he “actually

made some profits out of the sale” of methamphetamine he manufactured.




                                             2
       Before addressing appellant’s specific contentions, we first acknowledge the

standard of review of an ineffective assistance of counsel claim. To prevail on such an

allegation, a defendant must establish by a preponderance of the evidence that: (1)

counsel's performance was deficient, that is, it fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that but for counsel's deficient

performance, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rylander v. State, 101

S.W.3d 107, 109-10 (Tex.Cr.App. 2003). A reasonable probability is a probability sufficient

to undermine confidence in the outcome.           Mitchell v. State, 68 S.W.3d 640, 642

(Tex.Cr.App. 2002).     In other words, appellant must demonstrate that the deficient

performance prejudiced his defense. Id. Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v.

State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct.

1368, 131 L.Ed.2d 223 (1995).


       The adequacy of defense counsel's assistance is based upon the totality of the

representation rather than by isolated acts or omissions of trial counsel. Id. And, 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 to be

judged by hindsight. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993), cert.

denied, 510 U.S. 840, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993). Appellate review of trial

counsel's representation is highly deferential and presumes that counsel's conduct fell

                                              3
within the wide range of reasonable and professional representation. Bone v. State, 77

S.W.3d 828, 833 (Tex.Cr.App. 2002). That another attorney, including appellant’s counsel

on appeal, might have pursued a different course of action does not necessarily indicate

ineffective assistance. Sessums v. State, 129 S.W.3d 242, 247 (Tex.App.–Texarkana

2004, no pet. h.).


       Any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9

S.W.3d 808, 813 (Tex.Cr.App. 1999).      In the absence of direct evidence in the record of

counsel’s reasons for the challenged conduct, an appellate court will assume a strategic

motivation if any can be imagined. Garcia v. State, 57 S.W.2d 436, 440 (Tex.Cr.App.

2001), cert. denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030 (2003). Under

normal circumstances, the record on direct appeal will not be sufficient to show that

counsel’s representation was so deficient and so lacking in tactical or strategic decision-

making as to overcome the presumption that his conduct was reasonable and professional.

See Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001). Indeed, appellate courts can

rarely decide the issue of ineffective assistance of counsel because the record almost

never speaks to the strategic reasons trial counsel may have considered. Id. Although the

most effective procedure for presenting this claim may be via a habeas corpus, Aldrich v.

State, 104 S.W.3d 890, 896 (Tex.Cr.App. 2003), nevertheless, some claims may be

disposed of on direct appeal where trial counsel’s ineffectiveness is apparent from the

record. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Cr.App. 2003).

                                            4
       We now direct our attention to appellant’s first two points of error by which he claims

that he was denied his constitutional right to effective assistance of counsel, thus rendering

his plea involuntary and the resulting conviction void. In support of the voluntariness of his

plea, appellant suggests we review letters written by him to the court prior to trial revealing

his skepticism of his attorney’s competence and his reluctance to enter a guilty plea.

Regarding the void conviction argument, appellant contends that his attorney failed to

appreciate the variance between the quantity of methamphetamine alleged in the

indictment and the proof of that amount at trial. According to appellant, the indictment

alleged that he manufactured over 400 grams of pure methamphetamine, while the

evidence at trial merely established a combined weight for the controlled substances

seized from the crime scene of 167.33153 grams.1 This discrepancy obtains, he says,

because of the State’s failure to include in the indictment the language, “by aggregate

weight, including adulterants or dilutants.”      The omission of that phrase, suggests

appellant, resulted in his accountability for only that portion of the substance confirmed as

pure methamphetamine. Then, because the quantity of drugs determines the range of

punishment in a manufacturing case, appellant argues that, had his attorney provided

effective assistance, “it is quite conceivable that [appellant] may have only been guilty of

a State Jail felony as opposed to an aggravated first degree felony.” See Tex. Health &




       1
       Appellant obtains this result by multiplying the weight of the substance tested by
the percentage of methamphetamine, .02%, contained in the substance.

                                              5
Safety Code Ann. § 481.0112(b) & (f) (Vernon 2003). With appellant’s contentions, we

disagree.


       When a defendant challenges the voluntariness of a plea entered upon the advice

of counsel contending that his counsel was ineffective, the voluntariness of the plea

depends upon: (1) whether counsel’s advice was within the range of competence

demanded, and if not, (2) whether there is a reasonable probability that, but for the

ineffective assistance, the defendant would not have pleaded guilty and would have

insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-88 (Tex.Cr.App. 1999).

Because appellant did not file a motion for new trial raising his ineffectiveness claim, the

record has not been developed with respect to the reasons for the entry of appellant’s

guilty plea, the advice provided to him, or counsel’s trial strategy. Without a record having

been developed on these issues, we are unable to determine whether appellant entered

a plea of guilty on the advice of counsel or whether counsel’s advice was legally correct

and made pursuant to sound trial strategy.


       With regard to appellant’s assertion that his letters to the court “clearly reflect [his]

state of mind as to the involuntariness of his plea,” we observe that the record reveals

abundant evidence demonstrating that his plea was, in fact, freely and voluntarily made.

Indeed, we find the following exchange more probative of appellant’s state of mind on the

day of trial:




                                               6
             State:        So back to my original question.        You understand
                           completely what you pled guilty to?
             Defendant:    Yes, sir.
             State:        And that it’s the over 400 grams which puts it into a
                           higher penalty bracket? Do you understand that?
             Defendant:    Yes, sir.
             State:        Minimum punishment, fifteen years?
             Defendant:    Yes, sir.
             State:        If you are found guilty and you have pled guilty?
             Defendant:    Yes, sir.
             State:        You have signed a statement telling the Judge that you
                           are guilty?
             Defendant:    Yes, sir.
             State:        You wanted to do all that and you did all that
                           voluntarily?
             Defendant:    Yes, sir.
             State:        No one forced you to do it?
             Defendant:    No, sir.
             State:        You understood the questions the Judge asked you
                           about that and all that?
             Defendant:    Yes, sir.
             State:        All right. And you understand in all likelihood then that,
                           well, fifteen years is the minimum sentence?
             Defendant:    Yes, sir.
             State:        You know that?
             Defendant:    Yes, sir.


Bearing the preceding discussion in mind, and considering the lack of direct evidence of

what advice trial counsel gave appellant, whether it was legally correct, and whether that



                                            7
advice was the product of sound trial strategy, we conclude appellant has failed to

demonstrate ineffective assistance by a preponderance of the evidence.


       Furthermore, the genesis of appellant’s void conviction argument is his

misunderstanding of the requisites of an indictment and the definition of a controlled

substance. First of all, an indictment tracking the language of the statute will satisfy

constitutional and statutory requirements; the State need not allege facts that are merely

evidentiary in nature. State v. Mays, 967 S.W.2d 404, 406 (Tex.Cr.App. 1998). Moreover,

when a term is defined in the statute, it need not be further alleged in the indictment. Id.

Contrary to appellant’s assertion, the indictment here tracked the language of the statute.2

And, because controlled substance is defined by statute as a substance, including a drug,

an adulterant, and a dilutant listed in . . . Penalty Grou[p] 1”3 and “includes the aggregate

weight of any mixture, solution, or other substance containing a controlled substance,” it

was unnecessary for the State to define the term further in the indictment. Tex. Health &

Safety Code Ann. § 481.002(5) (Vernon 2003). As a matter of fact, appellant manifested

his appreciation of the charge against him during cross-examination:




       2
       Under the statute, a person commits an offense if “the person knowingly
manufactures . . . a controlled substance listed in Penalty Group 1.” Tex. Health & Safety
Code Ann. § 481.112(a) (Vernon 2003). The indictment in this case alleges that appellant
“did then and there knowingly manufacture, . . . a controlled substance, namely
methamphetamine, in an amount of 400 grams or more.”
       3
       Methamphetamine is listed in Penalty Group 1. Tex. Health & Safety Code Ann.
§ 481.102(6).

                                             8
             State:        And you told him [the judge] that you are pleading guilty
                           because in fact you are guilty of the manufacture of
                           methamphetamine of 400 grams or more?
             Defendant:    Yes, sir.
             State:        As was accused in the indictment?
             Defendant:    Well, the only thing I feel that isn’t right about it is over
                           400 grams. I know y’all are weighing everything on it,
                           but as far as actual meth that you are going to make
                           money off of or do, there wasn’t over 400 grams.
             State:        Well, I understand that but you understand the law says
                           the material that’s in there?
             Defendant:    Yes, sir, I understand.


(Emphasis added).


      Even in the absence of a record detailing counsel’s advice to appellant and

counsel’s trial strategy, we conclude appellant has failed to establish by a preponderance

of the evidence that his attorney’s representation fell below an objective standard of

reasonableness under prevailing norms.           Vasquez v. State, 830 S.W.2d 948, 949

(Tex.Cr.App. 1992). Indeed, given the inaccuracy of appellant’s assertions under these

points of error, trial counsel can hardly be faulted for “failing” to advise appellant in

accordance with them. Thus, having failed to overcome the presumption that trial

counsel’s conduct could be considered sound trial strategy, appellant’s ineffective

assistance claims must fail. We overrule his first and second points of error.


      By his third point of error, appellant maintains that “[a]s a matter of law, [he] could

not be convicted of the offense of manufacturing over 400 grams of methamphetamine


                                             9
where the State’s evidence clearly reflected there was less than 400 grams of

methamphetamine.” Because appellant labors under a misconceived understanding of the

law related to the offense of manufacturing a controlled substance, we disagree. In

reviewing the legal sufficiency of the evidence to support a conviction, we view the

evidence in the light most favorable to the verdict, and ask whether a rational trier of fact

could find the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). In our

review, we must evaluate all of the evidence in the record, both direct and circumstantial,

whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 ( Tex.Cr.App.

1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). This

standard gives full play to the responsibility of the trier of fact to resolve conflicts in the

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

ultimate facts. Jackson, 44 U.S. at 319.


       When the State proved that the substances seized from the crime scene had a

combined weight of well over 400 grams, and that they contained methamphetamine,

regardless of its concentration, it established the elements of the offense as alleged in the

indictment beyond a reasonable doubt. See Williams v. State, 936 S.W.2d 399, 405

(Tex.App.–Fort Worth 1996, pet. ref’d)(holding that proof of the gross weight of the

controlled substance appellant manufactured was sufficient, and that the State need only

to have demonstrated that part of the substance was a controlled substance, and that the

aggregate weight exceeded the minimum statutory amount). Furthermore, appellant

                                              10
entered into a stipulation of evidence judicially confessing that on the date of the offense

he manufactured methamphetamine in an amount of 400 grams or more. In short, the

evidence is legally sufficient to support the verdict. Appellant’s third point of error is

overruled.


       With his fourth and final point of error, appellant claims his conviction should be

reversed because the attorney for the State “intentionally or recklessly made a false

material representation in open court.” We disagree. Like appellant’s other points of error,

this one is premised on his misconception of the law. Appellant faults the attorney for the

State for commenting during cross-examination that appellant was responsible for the

gross weight of the controlled substance seized from the crime scene. According to

appellant, the “State’s attorney knew or should have known that his representation . . . was

false.” Apart from his bald assertion that “[i]n the interest of justice, said cause should be

reversed and [appellant] acquitted because of prosecutorial misconduct,” however,

appellant has failed to provide any argument or authority in support of his position.

Notwithstanding that inadequacy, we discern nothing improper about the prosecutor’s

statement. Indeed, as detailed in length above, the State was merely required to prove

that a portion of the substance appellant was charged with manufacturing was a controlled

substance, and that the aggregate weight of the seized substances exceeded the minimum

statutory amount. See Williams, 936 S.W.2d at 405. Thus, the prosecutor’s statement

was, in fact, a correct statement of the law. Appellant’s fourth point of error is overruled.



                                             11
      Accordingly, the judgment of the trial court is affirmed.


                                         Don H. Reavis
                                           Justice

Do not publish.




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