                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-13-00164-CR

KERRY REMBERT,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the 54th District Court
                          McLennan County, Texas
                         Trial Court No. 2012-1331-C2


                         MEMORANDUM OPINION


      The jury convicted Kerry Rembert of the offense of possession of a controlled

substance, found the enhancement paragraphs to be true, and assessed punishment at

75 years confinement. We affirm.

                                   Background Facts

      Waco police officers went to a residence known for the sale of illegal narcotics.

Police officers knocked on the back door of the residence, and someone opened the

door. Officer Michael McKinney testified that he could see Rembert and the owner of
the residence sitting at the kitchen table. Officer McKinney stated that he saw money

and marijuana on the table so the officers entered the residence. Officer McKinney

asked Rembert for his identification, and he testified that he saw Rembert drop a plastic

bag containing a white rocky substance that was later determined to be cocaine.

Rembert was placed under arrest, and he made a call to his girlfriend from the back of

the patrol car. Officer Robert Bruce testified that during the call, Rembert’s girlfriend

asked, ”what did they get you for” and Rembert responded, “[f]or the stuff I had.” The

girlfriend then asked, “[h]ow much you got” and Rembert responded “[a]bout 10

rocks.”

                              Ineffective Assistance of Counsel

       In the first and third issues, Rembert complains that he received ineffective

assistance of counsel. To prevail on a claim of ineffective assistance of counsel, an

appellant must meet the two-pronged test established by the U.S. Supreme Court in

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and

adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.

App. 1986).        Appellant must show that (1) counsel's representation fell below an

objective standard of reasonableness, and (2) the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

       Unless appellant can prove both prongs, an appellate court must not find

counsel's representation to be ineffective. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In

order to satisfy the first prong, appellant must prove, by a preponderance of the

evidence, that trial counsel's performance fell below an objective standard of

Rembert v. State                                                                     Page 2
reasonableness under the prevailing professional norms. To prove prejudice, appellant

must show that there is a reasonable probability, or a probability sufficient to

undermine confidence in the outcome, that the result of the proceeding would have

been different. Id.

       An appellate court must make a strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance. Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). In order for an appellate court to find that

counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in the

trial record; the court must not engage in retrospective speculation.        Id. "It is not

sufficient that appellant show, with the benefit of hindsight, that his counsel's actions or

omissions during trial were merely of questionable competence." Lopez v. State, 343

S.W.2d at 142-3. When such direct evidence is not available, we will assume that

counsel had a strategy if any reasonably sound strategic motivation can be imagined.

Lopez v. State, 343 S.W.2d at 143. In making an assessment of effective assistance of

counsel, an appellate court must review the totality of the representation and the

circumstances of each case without the benefit of hindsight. Id.

       The Texas Court of Criminal Appeals has repeatedly stated that claims of

ineffective assistance of counsel are generally not successful on direct appeal and are

more appropriately urged in a hearing on an application for a writ of habeas corpus.

Lopez v. State, 343 S.W.2d at 143. On direct appeal, the record is usually inadequately

developed and "cannot adequately reflect the failings of trial counsel" for an appellate

court "to fairly evaluate the merits of such a serious allegation." Id.

Rembert v. State                                                                      Page 3
       In the first issue, Rembert complains that his trial counsel was ineffective in

failing to object to the admission of extraneous offense evidence or request a limiting

instruction.       Rembert contends that his trial counsel should have objected to the

testimony by the police officers that there was marijuana on the table where he was

seated. Trial counsel did not object to the testimony, nor did she request a limiting

instruction advising the jury that they could not consider the testimony to determine

Rembert’s character in conformity with the charged crime.

       The Texas Rules of Evidence provide that:

              Evidence of other crimes, wrongs or acts is not admissible to prove
       the character of a person in order to show action in conformity therewith.
       It may, however, be admissible for other purposes, such as proof of
       motive, opportunity, intent, preparation, plan, knowledge, identity, or
       absence of mistake or accident, provided that upon timely request by the
       accused in a criminal case, reasonable notice is given in advance of trial of
       intent to introduce in the State’s case-in-chief such evidence other than
       that arising in the same criminal transaction.

       Same transaction contextual evidence is admissible where "the facts and

circumstances of the instant offense would make little or no sense without" it. Rogers v.

State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). "[E]vents do not occur in a vacuum, and

the jury has a right to hear what occurred immediately prior to and subsequent to the

commission of that act so that it may realistically evaluate the evidence." Wesbrook v.

State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). A "jury is entitled to know all the

relevant surrounding facts and circumstances of the charged offense." Moreno v. State,

721 S.W.2d 295, 301 (Tex. Crim. App. 1986). No limiting instruction is required for same




Rembert v. State                                                                       Page 4
transaction contextual evidence. See Camacho v. State, 864 S.W.2d 524, 535 (Tex. Crim.

App. 1993).

       The officers testified that the marijuana was in plain view on the table when the

door to the residence was opened. Officer McKinney testified that seeing the marijuana

in plain view gave the officers reason to go inside. We find that the evidence of the

marijuana was same transaction contextual evidence, and trial counsel was not

ineffective in failing to object to the testimony or request a limiting instruction. We

overrule the first issue.

       In the third issue, Rembert complains that his trial counsel was ineffective in

failing to timely request independent testing of the weight of the cocaine. Trial counsel

filed a motion for independent quantitative weight analysis after the pre-trial hearing

had occurred. The trial court denied the motion as untimely filed. Rembert argues that

his punishment would have been greatly reduced if the independent testing showed he

possessed a smaller amount of cocaine.

       Rembert does not show a reasonable probability that, had counsel requested

independent testing, the result of the trial would have been different. See Bates v. State,

88 S.W.3d 724, 729 (Tex. App.-Tyler 2002, pet. ref'd). Rembert does not suggest a

reasonable probability that the results of independent testing would have been

different from that by the Texas Department of Public Safety. There is nothing in the

record to suggest there was an error in weighing the cocaine or that anyone tampered

with the evidence. We overrule the third issue.



Rembert v. State                                                                     Page 5
                                       Jury Charge

       In the second issue, Rembert complains that the trial court erred in failing to

include a limiting instruction in the jury charge. Rembert contends that the jury should

have been instructed not to consider evidence that he possessed marijuana to prove his

character in conformity with the crime for which he was not on trial. As previously

discussed in issue one, the evidence of the marijuana was same transaction contextual

evidence. No limiting instruction is required for same transaction contextual evidence.

See Camacho v. State, 864 S.W.2d 524, 535 (Tex. Crim. App. 1993). The trial court did not

err in failing to include the instruction. We overrule the second issue.

                                           Conclusion

       We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 13, 2014
Do not publish
[CRPM]




Rembert v. State                                                                   Page 6
