                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00143-CR
         ______________________________


     DELEON JUAN VANEGAS, JR., Appellant

                         V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the Criminal District Court #1
                Dallas County, Texas
           Trial Court No. F-0800368-H




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION

         The lifeless body of fifteen-year-old Fernando Cortez, Jr., was found by his sixteen-year-old

sister, Ava Bianca Cortez, at the Dallas1 home of Bianca's nineteen-year-old boyfriend, Deleon Juan

Vanegas, Jr., the morning after a long night during which the three had ingested Xanax and

"cheese"—a dangerous mixture of black tar heroin and Tylenol P.M.—while they had watched

rented movies and had eaten Chinese food. Bianca found Fernando's body lying face up with a white

froth around the mouth and nose. It was determined that Fernando died from a heroin overdose.

         Vanegas was convicted by a jury of knowing delivery of heroin to a minor. The jury also

found Vanegas used or exhibited the heroin as a deadly weapon in commission of the crime. From

a sentence of eighteen years' imprisonment, Vanegas appeals.

         We reform the trial court's judgment to reflect the correct statutory section and degree for the

offense and, as reformed, affirm the judgment. We reach that result based on the following holdings:

(1) Vanegas was properly arraigned, (2) sufficient evidence supports the judgment, (3) ineffective

assistance of counsel has not been shown, and (4) the judgment should be reformed to speak the

truth.




         1
         This case was transferred to this Court from the Fifth District Court of Appeals in Dallas as
part of the Texas Supreme Court's docket equalization program. We are not aware of any conflict
between the precedent of the Dallas Court and the precedent of this Court on any issue relevant in
this appeal. See TEX . R. APP . P. 41.3.

                                                    2
(1)    Vanegas Was Properly Arraigned

       "In all felony cases, after indictment, . . . there shall be an arraignment." TEX . CODE CRIM .

PROC. ANN . art. 26.01 (Vernon 2009). The purpose of the arraignment is to identify the defendant

and hear his or her plea. TEX . CODE CRIM . PROC. ANN . art. 26.02 (Vernon 2009). Although Vanegas

claims he did not enter a plea at arraignment, the record before us establishes otherwise. Vanegas

was first arraigned April 4, 2008, when he pled "not guilty" to all allegations contained within the

indictment. His brief fails to refer to this arraignment. Instead, Vanegas refers to an arraignment

on the same indictment which occurred May 12, 2008, the day before trial. The record reflects that

the trial court read the indictment, advised Vanegas of the range of punishment, and recorded a plea

offer from the State. After receiving responses from counsel that no other pretrial matters needed

to be taken up, the trial court proceeded to voir dire. Vanegas contends that, because the reporter's

record does not reflect he was given the opportunity to plead at the May 12 arraignment, he was

harmed because the failure "deprived him of the opportunity to change his mind and accept the

State's offer before going to trial."2 After the jury was empaneled and seated, however, the trial court

read the indictment and asked for Vanegas' plea. Again, he pled "not guilty."3


       2
         The clerk's record contains a document bearing Vanegas' signature file-marked May 12,
2008, at 8:59 a.m. which recites, "Comes now Defendant in the above cause, at the time of entering
a plea of Not Guilty herein in open Court, and requests that the JURY assess the punishment herein."
       3
        Vanegas cites cases decided under Article 36.01 of the Texas Code of Criminal Procedure,
which requires the indictment to be read and a plea entered in the jury's presence. TEX . CODE CRIM .
PROC. ANN . art. 36.01 (Vernon 2007); see Hunt v. State, 994 S.W.2d 206, 210–11 (Tex.
App.—Texarkana 1999, pet. ref'd); Hazelwood v. State, 838 S.W.2d 647, 650–51 (Tex.

                                                   3
        This point of error is overruled, since Vanegas was properly arraigned April 4, 2008.

Moreover, even had there been any error in the arraignment, it would have been waived since no

objection was asserted below. Adkison v. State, 762 S.W.2d 255, 259 (Tex. App.—Beaumont 1998,

pet. ref'd).

(2)     Sufficient Evidence Supports the Judgment

        Vanegas contends the evidence is legally and factually insufficient to support the

verdict—principally in proving the element of delivery of the controlled substance.

        When conducting a legal sufficiency analysis, we review all of the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Clewis v. State, 922 S.W.2d 126, 132–33 (Tex. Crim. App. 1996). This standard serves as a tool to

determine whether there is a fact issue at all. Clewis, 922 S.W.2d at 133. In other words, if the

evidence is insufficient under the Jackson standard, we must render a judgment of acquittal. Id.

        If the Jackson standard is met, we may not sit as the thirteenth juror reevaluating the weight

and credibility of the evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

Instead, we must give proper deference to the fact-finder's responsibility to weigh the evidence,

resolve conflicts in the testimony, and draw reasonable inferences from basic facts. Johnson v. State,



App.—Corpus Christi 1992, no pet.); State ex rel. Ownby v. Harkins, 705 S.W.2d 788, 790 (Tex.
App.—Dallas 1986, orig. proceeding). Since Article 36.01 was complied with, Vanegas' cited cases
do not apply.

                                                  4
23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis, 922 S.W.2d at 133; Bottenfield v. State, 77 S.W.3d

349, 354 (Tex. App.—Fort Worth 2002, pet. ref'd) (citing Jackson, 443 U.S. at 319).

       When reviewing for factual sufficiency, we are not free to reweigh the evidence and set aside

a jury verdict merely because we feel a different result is more reasonable. Clewis, 922 S.W.2d at

135. Instead, we give due deference to the jury's determinations and will find the evidence factually

insufficient only when necessary to prevent manifest injustice. Johnson, 23 S.W.3d at 8–9, 12;

Clewis, 922 S.W.2d at 133, 135. Thus, a factual sufficiency review examines the evidence in a

neutral light and determines whether the proof of guilt is obviously weak as to undermine confidence

in the verdict, or, if taken alone, is greatly outweighed by contrary proof so as to be clearly wrong

and unjust. Johnson, 23 S.W.3d at 11; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997);

Harris v. State, 133 S.W.3d 760, 764 (Tex. App.—Texarkana 2004, pet. ref'd).

       A "person commits an offense if the person knowingly delivers a controlled substance . . .

to a . . . child." TEX . HEALTH & SAFETY CODE ANN . § 481.122 (Vernon 2003). Vanegas contends

he did not knowingly deliver the "cheese" to Fernando. To bolster his argument, he reiterates that

he did not force or coax Fernando into "snorting cheese," but instead merely left it on the plate for

his own use.

       According to the Texas Controlled Substances Act, to deliver "means to transfer, actually or

constructively, to another a controlled substance . . . regardless of whether there is an agency

relationship." TEX . HEALTH & SAFETY CODE ANN . § 481.002(8) (Vernon Supp. 2008). Actual



                                                 5
delivery consists of transferring or surrendering "the real possession and control of a controlled

substance from one person to another person." Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim.

App. 1992); see Ex parte Perales, 215 S.W.3d 418, 420 (Tex. Crim. App. 2007). A constructive

transfer can occur by placing the contraband "in a particular location and then advis[ing] the recipient

of this location so that the recipient can retrieve" it. Sims v. State, 117 S.W.3d 267, 268–69 (Tex.

Crim. App. 2003). A single case may involve both actual and constructive transfer. Id. at 270. For

example, a constructive transfer can occur when someone is informed of the contraband's location,

and an actual transfer can occur when the contraband is retrieved. Id.

        After Bianca found Fernando's body and before police arrived, Vanegas fled the scene.

Vanegas' subsequent voluntary interview by Detective Paul Ellzey, combined with Bianca's

testimony at trial, revealed the events leading up to Fernando's death. Earlier on the night of

Fernando's death, Vanegas had picked up Bianca and his sister, Monique. He drove to a dealer's

home to purchase black tar heroin, picked up Fernando who "was already messed up," and returned

to Monique's home. Monique cut the heroin with Tylenol P.M. to make "cheese." Monique

"snorted" some lines with Vanegas and gave him some "cheese" to take with him.

        After leaving Monique's home, Vanegas, Bianca, and Fernando rented some movies, picked

up Chinese food, and went to a "dope" house to acquire Xanax and more heroin. Vanegas took two

Xanax pills, while Bianca and Fernando took one and one-half each. When they arrived at Vanegas'

house, they watched movies, ate the Chinese food, and proceeded to "[snort] some cheese." Bianca



                                                   6
and Fernando had never tried "cheese" before, so Vanegas went first and allowed Fernando to use

his straw so that he could "snort cheese." In his interview, Vanegas said he saw Fernando "snort"

two "lines." Bianca also admitted she "snorted" one "line of cheese." In the course of the night,

Vanegas admitted he "snorted" between three and five "lines of cheese." He had intended to cut the

newly purchased heroin, acquired after he left Monique's house, but claims that he passed out.4

Bianca and Fernando continued to watch movies until Fernando became tired. Since Fernando had

never stayed at Vanegas' house, Bianca showed him where he would be sleeping. Fernando was

found dead in the same position that Bianca last saw him the night before. His autopsy concluded

that he had "died as a result of the toxic effects of heroin."

        Here, the evidence suggests that Vanegas organized the "cheese" into lines in the presence

of Fernando, and "snorted" a few lines with the aid of a straw. He passed the straw to Fernando and

watched as he "snorted" two lines of "cheese." Both actual and constructive delivery was involved

in this case, since Vanegas surrendered possession of the "cheese" while in the presence of Fernando,

who retrieved it. Based on Vanegas' own admissions, we conclude that a rational trier of fact could

find that, beyond a reasonable doubt, Vanegas knowingly delivered the "cheese" to Fernando. We

give due deference to the jury's determination of this matter and fail to find, even when viewing the

evidence in a neutral light, that confidence in the jury's verdict is undermined or shown to be clearly

wrong and unjust. See Rodriguez v. State, 31 S.W.3d 772, 774 (Tex. App.—Austin 2000), aff'd, 104

       4
       Contrary to Ellzey's testimony that "[Vanegas] is the one that cut it," it appears from
Vanegas' interview and Bianca's testimony that the heroin was actually cut by Monique.

                                                   7
S.W.3d 87 (Tex. Crim. App. 2003) (in face of argument that State did not prove actual transfer of

cocaine, evidence legally sufficient where defendant chopped cocaine with razor blade, divided it

into lines, and watched as his fourteen-year-old daughter used rolled-up dollar bill to inhale cocaine).

The evidence is legally and factually sufficient to support the verdict that Vanegas knowingly

delivered "cheese" heroin to a child.

(3)    Ineffective Assistance of Counsel Has Not Been Shown

       Vanegas also contends he received ineffective assistance of counsel when counsel allowed

inadmissible extraneous-offense evidence to be placed in front of the jury.5 The extraneous-offense

evidence refers to a no-billed manslaughter charge mentioned in the videotape interview of Vanegas

with Ellzey as follows:

               THE DETECTIVE:           What did they do with that other case?

               THE WITNESS:             What other case?

               THE DETECTIVE:           That terrible case.

               THE WITNESS:             My little boy?

               THE DETECTIVE:           The manslaughter case.

              THE WITNESS:              Oh, my little boy? They took to it [sic] the grand jury
       and they dumped it.

               THE DETECTIVE:           They no billed it or what?

       5
        An extraneous offense is defined as any "act of misconduct . . . that is not shown in the
charging papers." Coffel v. State, 242 S.W.3d 907, 909 (Tex. App.—Texarkana 2007, no pet.)
(quoting Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996)).

                                                   8
                   THE WITNESS:        Yeah, I guess.

                   THE DETECTIVE:      Because I heard they was trying to give you some years
       at first.

               THE WITNESS:            Yeah, at first, they was trying to give me some years,
       but (unintelligible) on the case.

                   ....

               THE DETECTIVE: But you don't -- tell me what was -- I haven't had time
       to go research your case, but did you ever get arrested for that case and did you ever
       have to post a bond for that case?

                   THE WITNESS:        No, none of that.

       The State provided the jury with a transcript of the videotaped interview and played portions

of the interview. Both the videotape and transcript were offered and admitted for demonstrative

purposes only. Before the State played the portion referenced above, Vanegas' counsel asked to

approach the bench, the jury was removed, and counsel lodged Vanegas' objection:

       Your Honor, I believe at this point in the videotape we're going to get into asking him
       about a prior manslaughter case that was no-billed by the Grand Jury, and I would
       argue that the prejudicial effect of the prior case isn't relevant to the case at hand at
       this point. It's not relevant and it would be too prejudicial to talk about just the
       manslaughter case and how that applies to what we're trying him for.

Counsel also asked that page thirty-three of the transcript, containing the references, be removed

from the jury's possession. The State agreed to start the video after the point containing the

extraneous-offense evidence and also agreed to remove page thirty-three from the transcript. Before

the jury was brought in, a recess was taken. When the jury was seated, the State drew its attention



                                                  9
to page thirty-four of the transcript and did not play the portion referencing manslaughter. Vanegas

contends his counsel was ineffective because he forgot to ensure page thirty-three was actually

removed from the transcript copies in the jury's possession.

       Whether a defendant received ineffective assistance of counsel is an assessment that must

be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App.

[Panel Op.] 1979). Any allegation of ineffectiveness must be firmly established in the record.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). Vanegas bears the burden of proving from the record, by a

preponderance of the evidence, that counsel was ineffective. Goodspeed, 187 S.W.3d at 392;

Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).

       To aid our determination, we apply the two-pronged Strickland test handed down by the

United States Supreme Court. See Strickland v. Washington, 466 U.S. 668 (1984). Vanegas must

first show counsel's performance fell below an objective standard of reasonableness when

considering prevailing professional norms. See id. at 687–88. "This requires showing that counsel

made errors so serious that counsel was not functioning as 'counsel' guaranteed the defendant by the

Sixth Amendment." Sanchez v. State, No. 07-06-0435-CR, 2008 WL 2405889, at *1 (Tex.

App.—Amarillo June 13, 2008, no pet.) (mem. op., not designated for publication). Our review of

counsel's performance is highly deferential. Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App.

2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). There is a strong presumption



                                                10
that counsel's conduct fell within the wide range of reasonable professional assistance and that the

challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 689; White, 160

S.W.3d at 51; Tong, 25 S.W.3d at 712. Therefore, we will not second guess the strategy of counsel

at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State,

161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref'd). Where the record is silent as to why

counsel failed to make an objection or take certain actions, we will assume it was due to any strategic

motivation that can be imagined, and the appellant will have failed to rebut the presumption that trial

counsel's actions were in some way reasonable. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim.

App. 2007); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d

475, 485–86 (Tex. App.—Texarkana 2005, pet. ref'd). In other words, we will not conclude that the

challenged conduct was deficient unless it was so outrageous that no competent attorney would have

engaged in it. Thompson, 9 S.W.3d at 808; Fox, 175 S.W.3d at 485–86.

        The record demonstrates counsel objected as soon as he realized extraneous-offense evidence

would be introduced and requested removal of all materials containing such evidence. Although

counsel failed to see to it that page thirty-three of the transcript was actually removed, the record fails

to demonstrate why. We note that a recess was taken before the jury was seated. Counsel could

have communicated with the State and determined it would be best for the State to draw attention

to a subsequent page in the transcript, rather than have the jury notice the absence of a page in the




                                                    11
transcript and conclude there was evidence Vanegas was hiding. We will not second guess counsel

through hindsight.

       In any event, failure to satisfy either prong of the Strickland test is fatal. Jaubert v. State, 74

S.W.3d 1, 9 (Tex. Crim. App. 2002). Thus, we need not examine both Strickland prongs if one

cannot be met. Strickland, 466 U.S. at 697. We find this fourth point of error can be overruled

based on analysis of the second prong of Strickland. To meet the second prong, Vanegas must show

that counsel's performance damaged his defense such that there is a reasonable probability the result

of the trial would have been different. See id. at 693; Tong, 25 S.W.3d at 712. It is not enough for

Vanegas to show that the errors had some conceivable effect on the outcome of the proceeding. See

Strickland, 466 U.S. at 693. We evaluate this factor while taking into consideration the totality of

representation and the particular circumstances of this case. Thompson, 9 S.W.3d at 813; Ex parte

Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991).

       There is no evidence in the record demonstrating the jury saw or considered page thirty-three

of the transcript. It appears that counsel was playing the video while the jury had the transcript in

its possession; the jury could either watch the videotape, or follow along using the transcript. Since

the transcript was offered for demonstrative purposes only, it was not available during jury

deliberations, such that the jury could be influenced by it. The trial court instructed the jury that:

       if there is any testimony before you in this case regarding the defendant's having
       committed an offense, if any, other than the offense, if any, alleged against him in the
       indictment in this case, you cannot consider that testimony for any purpose unless



                                                   12
       you find and believe beyond a reasonable doubt that the defendant committed such
       other offense.

This Court can generally presume that the jury followed the trial court's instructions. Colburn v.

State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Also, because we have concluded the evidence

was legally and factually sufficient to support the verdict, Vanegas has failed to demonstrate that

removal of any alleged deficiency would have caused a different result. Since Vanegas has not met

both prongs of the Strickland test, this point of error is overruled.

(4)    The Judgment Should Be Reformed to Speak the Truth

       The judgment in this case lists the statute of the offense as "19.02 Health and Safety Code,"

even though no such statute exists. The parties agree that the judgment should be reformed to

reference Section 481.122 of the Texas Health and Safety Code as the statute addressing the correct

offense for which Vanegas was indicted and convicted. See TEX . HEALTH & SAFETY CODE ANN .

§ 481.122.

       Additionally, the judgment of conviction lists the degree of the offense as a second-degree

felony. While it is true that delivery of a controlled substance to a minor is a second-degree felony,

the degree of offense is increased by one level if a jury determines beyond a reasonable doubt that

the minor died as a result of introducing the controlled substance into the body. TEX . HEALTH &

SAFETY CODE ANN . §§ 481.122(c), 481.141(a) (Vernon Supp. 2008).

       The Texas Rules of Appellate Procedure give this Court authority to reform judgments and

correct typographical errors to make the record speak the truth. TEX . R. APP . P. 43.2; French v.


                                                  13
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Peek v. State, No. 06-08-00069-CR, 2008 WL

5090344, at *1–2 (Tex. App.—Texarkana Dec. 4, 2008, no pet.) (mem. op., not designated for

publication) (reforming judgment to reflect correct degree of offense); Battle v. State, No. 06-07-

00148-CR, 2008 WL 482343, at *3 (Tex. App.—Texarkana Feb. 25, 2008, no pet.) (mem. op., not

designated for publication) (reforming judgment to reflect proper statute under which defendant

should have been convicted); Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi 1982,

pet. ref'd).

        We modify the judgment to reflect that Vanegas' conviction was under Section 481.122 of

the Texas Health and Safety Code, and was of a first-degree felony offense.6

        As reformed, we affirm the judgment of the trial court.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:        March 23, 2009
Date Decided:          April 10, 2009

Do Not Publish



        6
         We also note that the judgment provides that the sentence will run "concurrently." For this
offense, enhanced due to death or serious bodily injury of the recipient of the controlled substance,
a sentence cannot run concurrently. TEX . HEALTH & SAFETY CODE ANN . § 481.141(c) (Vernon
Supp. 2008). But because this case involves only one charge, and thus one sentence, we need not
address this error.

                                                 14
