Opinion issued September 29, 2016




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00568-CR
                            ———————————
                      RONALD BRYCE HALL, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 239th District Court
                           Brazoria County, Texas
                         Trial Court Case No. 74228


                          MEMORANDUM OPINION

      A jury found Appellant, Ronald Bryce Hall, guilty of the offense of possession

of a controlled substance with the intent to deliver in a drug free zone. 1 The jury


1
      See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (Vernon 2010), § 481.134
      (Vernon Supp. 2015).
assessed punishment at 20 years in prison. Appellant asserts on appeal that he

received ineffective assistance of counsel at trial.

      We affirm.

                                     Background

      Prior to July 17, 2014, Investigator J. Edwards from the Alvin Police

Department was contacted by a confidential informant. The informant told Edwards

that he could purchase methamphetamine from either Christopher Hanselka or Kayle

Greene. Edwards ultimately arranged for the confidential informant to conduct two

controlled buys by contacting Hanselka by phone and making the arrangement.

      During the first buy, the informant made contact with Hanselka. Following

an agreement to sell drugs, the informant went to Appellant’s residence in Alvin,

Texas. The informant met Appellant, who completed the transaction.

      The second buy occurred the same way except that Greene made the exchange

of money for meth, and Appellant did not participate in the sale. The details of the

controlled buys were included in an affidavit, which was then used to obtain a search

warrant for Appellant’s residence.

      Based on these transactions, Investigator Edwards prepared an affidavit in

support of a request for a search warrant for Appellant’s residence. Edwards detailed

the information relevant to the search warrant, including the actions and statements

of the informant. The search warrant was issued. It authorized the seizure of, among



                                           2
other things, evidence of any narcotic transactions that may be found on ledgers and

cell phones.

      On July 17, police executed the search warrant on Appellant’s residence. Five

people were in the three-bedroom house. Appellant was one of three people listed

in the affidavit supporting the search warrant, and he was found alone in a bedroom.

Hanselka and Greene were listed on the affidavit, and they were found in another

bedroom. There were two other people in the third bedroom. All five were arrested.

       Appellant was found lying on a bed with a small bag under a table within

arm’s reach. The bag contained what was later determined to be 6.3 grams of

methamphetamine. A pink camouflage case was lying in bed with Appellant, and it

contained over 50 small Ziploc baggies, syringes, a digital scale, a 100-gram metal

weight, a black light, and a credit card reader. Several cell phones, $128 in small

bills, and 27 promethazine pills in a pouch were also recovered from Appellant’s

room. Appellant’s cellphone contained pictures of himself and a scale weighing

what appears to be methamphetamine of two different amounts.

      Every bedroom in the house was found with a digital scale in it. Hanselka and

Greene’s bedroom also had a ledger. The ledger contained a record of drug

transactions.

       The police determined that Appellant’s house was 862 feet from Sealy Park,

which was open to the public.



                                         3
      Prior to trial, Appellant moved to have the identity of the confidential

informant disclosed and the search warrant suppressed for the alleged unreliability

of the informant. Both motions were denied. During the trial, when the search

warrant and its supporting affidavit were admitted as evidence, Appellant reurged

his motion to suppress, which was overruled.

      Also during trial, Sergeant J. Brawner, from the Narcotics Division of the

Brazoria county Sheriff’s Office, testified about general information regarding

methamphetamine use and how it is sold and distributed. Sergeant Brawner also

testified about the damaging effects that methamphetamine use has on society as a

whole and about the general state of methamphetamine trafficking throughout

Brazoria County.

      During closing argument, Appellant’s trial counsel acknowledged that

Appellant possessed the meth he was found with but argued that Appellant was just

a user and not a dealer. He pointed out that Appellant’s house was in horrible

condition and that there were used syringes and small baggies that contained meth

residue in them, which pointed to the use of drugs at Appellant’s residence.

      In contrast, the State argued that being a user and a dealer were not mutually

exclusive. The State highlighted all of the evidence retrieved from Appellant’s

residence, and his room in particular, that is indicative of drug sales, including the

baggies and scale kept in a case, which was found in Appellant’s bed with him at the



                                          4
time of arrest, as well as the ledger of drug transactions found in another room. After

this summary, the State argued that, if this evidence did not convince the jury, the

search-warrant affidavit should. The State argued that the claim in the affidavit that

the confidential informant completed the first drug purchase with Appellant

established that he had the intent to deliver drugs even if all the other evidence did

not persuade the jury.

      After trial, Appellant filed a motion for a new trial. The motion did not raise

any ineffective assistance of counsel claims.

                            Applicable Legal Principles

      The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. See U.S.

CONST. amend. VI. To show ineffective assistance of counsel, a defendant must

demonstrate both (1) that his counsel’s performance fell below an objective standard

of reasonableness and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068

(1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). Failure

to make the required showing of either deficient performance or sufficient prejudice

defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex.

Crim. App. 2009); Andrews, 159 S.W.3d at 101.



                                           5
      An appellant bears the burden of proving by a preponderance of the evidence

that his counsel was ineffective. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.

Id. at 814. We presume that a counsel’s conduct falls within the wide range of

reasonable professional assistance, and we will find a counsel’s performance

deficient only if the conduct is so outrageous that no competent attorney would have

engaged in it. Andrews, 159 S.W.3d at 101. When an appellant argues that his

counsel rendered ineffective assistance by failing to make an objection, he must

show that the trial court would have erred in overruling the objection. Vaughn v.

State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); Jacoby v. State, 227 S.W.3d

128, 131 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

      “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.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.

App. 2011). Demonstrating ineffective assistance of counsel on direct appeal is “a

difficult hurdle to overcome.”     Id. In order to establish it, “the record must

demonstrate that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify

trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.



                                          6
      After proving error, the appellant must affirmatively prove prejudice from the

deficient performance of his attorney. Hernandez v. State, 988 S.W.2d 770, 772

(Tex. Crim. App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—

Texarkana 2000, pet. ref’d). The appellant must prove that his attorney’s errors,

judged by the totality of the representation and not by isolated instances of error,

denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not enough for the appellant

to show that the errors had some conceivable effect on the outcome of the

proceedings. Id. He must show that there is a reasonable probability that, but for

his attorney’s errors, the jury would have had a reasonable doubt about his guilt or

that the extent of his punishment would have been less. See id.; see also Bone v.

State, 77 S.W.3d 828, 836–37 (Tex. Crim. App. 2002).

                                       Analysis

      In his sole issue on appeal, Appellant argues that he received ineffective

assistance of counsel at trial. Within this issue, Appellant raised four general grounds

for why his counsel was ineffective: failure to (1) object to irrelevant and prejudicial

evidence of drug trafficking in Brazoria County and in Texas and the effects that

methamphetamine has on society; (2) object to the admission of photographs found

on Appellant’s cell phone at the time of his arrest; (3) object to the admission of a

drug ledger found in Hanselka’s bedroom; and (4) object to the admission of the




                                           7
search warrant and supporting affidavit based on the Confrontation Clause and

hearsay.

A.    Testimony about Drug Trafficking in Brazoria County

      In his first ground for ineffective assistance of counsel, Appellant complains

about his trial counsel’s failure to object to evidence of drug trafficking in Brazoria

County and in Texas and the effects that methamphetamine has on society. This

testimony was provided by Sergeant Brawner. Appellant contends that these two

parts of Brawner’s testimony were irrelevant and prejudicial and trial counsel should

have objected to them.

      Assuming without deciding the testimony was inadmissible, we note the

record is silent with regards to what trial counsel’s motives could have been for not

objecting to its admission. “If counsel’s reasons for his conduct do not appear in the

record and there is at least the possibility that the conduct could have been grounded

in legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an

ineffective assistance claim.” Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App.

2007).

      The State argues that trial counsel could have determined that Sergeant

Brawner’s testimony had little or no effect on the defense’s theory that Appellant

was a drug user and not a dealer and objecting to the testimony would have




                                           8
highlighted the testimony and made Appellant appear like he was trying to hide

something.

       For evidence that is not particularly harmful, trial counsel can reasonably

decide not to object so as to appear candid and not trying to hide evidence. See

Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref’d) (it is plausible strategy for trial counsel to try to elicit the appearance of candor

by not objecting to inadmissible evidence when that evidence is not that harmful);

see also Haagensen v. State, 346 S.W.3d 758, 766 (Tex. App.—Texarkana 2011, no

pet.) (objecting to the evidence would have emphasized it and a plausible trial

strategy for not objecting may have been to build rapport with the jury and prevent

the jury from making the determination that counsel was attempting to hide

information).

       Sergeant Brawner testified that Brazoria County was added into what is

known as the High Intensity Drug Trafficking Area Network and that there are many

negative effects on society from meth dealing and usage, including theft and child

neglect. He also testified that the drug was highly addictive, which leads to the

societal problems he mentioned.           This evidence did not directly contradict

Appellant’s defensive theory that he was a user but not a dealer. In addition to the

possibility that Appellant’s trial counsel was trying to avoid appearing like he was

hiding evidence, trial counsel could have reasonably anticipated relying on



                                             9
Brawner’s testimony to engender sympathy for Appellants given the addictiveness

of the drug Appellant possessed.        Accordingly, this ground does not support

Appellant’s ineffective assistance of counsel issue.

B.    Admission of Appellant’s Cell Phone

      Appellant argues that his trial counsel was ineffective because he failed to

object to the insufficiency of the affidavit used to support the search warrant for the

seizure of Appellant’s cell phone and the photos on it. In addition, Appellant claims

that trial counsel failed to object to the relevance or unfair prejudice of the photos.

      In order to show that trial counsel was ineffective for failing to object,

Appellant must show that the trial court would have committed an error by

overruling the objection that he asserts trial counsel should have made. Vaughn, 931

S.W.2d at 566; Jacoby, 227 S.W.3d at 131. An evidentiary search warrant may be

issued for the search and seizure of “property or items, except the personal writings

by the accused, constituting evidence of an offense or constituting evidence tending

to show that a particular person committed an offense.”2 TEX. CRIM. PROC. CODE

ANN. art 18.02(10) (Vernon Supp. 2015); Porath v. State, 148 S.W.3d 402, 407–08




2
      A warrant issued under TEX. CRIM. PROC. CODE ANN. art 18.02(10) (Vernon Supp.
      2015) is called an evidentiary search warrant. Carman v. State, 358 S.W.3d 285,
      297 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (quoting Porath v. State, 148
      S.W.3d 402, 407–08 (Tex. App.—Houston [14th Dist.] 2004, no pet.)).

                                           10
(Tex. App.—Houston [14th Dist.] 2004, no pet.). An evidentiary search warrant

requires an affidavit that sets forth sufficient facts to establish probable cause:

      (1) that a specific offense has been committed,

      (2) that the specifically described property or items that are to be searched for
      or seized constitute evidence of that offense or evidence that a particular
      person committed that offense, and

      (3) that the property or items constituting evidence to be searched for or seized
      are located at or on the particular person, place, or thing to be searched.

TEX. CRIM. PROC. CODE ANN. art 18.01(c) (Vernon Supp. 2015); Carman v. State,

358 S.W.3d 285, 297 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).

      In the context of evidentiary searches, probable cause involves “a fair

probability that contraband or evidence of a crime will be found.” Baldwin v. State,

278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (quoting Alabama v. White, 496 U.S.

325, 330 (1990)). “Probable cause is a relatively high level of suspicion, though it

falls far short of a preponderance of the evidence standard.” Id. (citing Maryland v.

Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800 (2003)).

      Appellant contends that there was no probable cause to search and seize

Appellant’s cell phone because its inclusion in the evidentiary search warrant was

based on “generalities and stereotypes of drug dealers in the abstract.” See Price v.

State, 93 S.W.3d 358, 367 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)

(determining that the justification for a no-knock entry to execute a search warrant

cannot be based on the stereotype that all drug dealers are violent). A magistrate’s

                                           11
decision to issue an evidentiary search warrant is reviewed under a highgly

deferential standard of review. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim.

App. 2013). If the magistrate had a substantial basis for concluding that probable

cause existed, then the magistrate’s decision should be upheld. Id. (citing State v.

McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011) (citing Gates, 462 U.S. at

234–37)). The magistrate may “draw reasonable inferences solely from the facts

and circumstances contained within the affidavit’s four corners.” Id. (citing State v.

Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App. 2011)). Appellate courts should not

invalidate a warrant through a hyper-technical interpretation of the affidavit if the

warrant would be valid through a common sense interpretation. Id. (citing McLain,

337 S.W.3d at 272).

      The information contained within the four corners of the affidavit includes the

details of two controlled buys by the confidential informant that occurred at

Appellant’s residence. Both of those buys were initiated and arranged over a cell

phone.   In addition, the affiant swore, based on his training, experience, and

participation in financial/drug trafficking investigations that a cell phone was a

common tool of drug trafficking and that it was reasonable to believe that any cell

phone found at Appellant’s residence could contain evidence of illegal drug

trafficking.




                                         12
      Given that a cell phone was used in facilitating the two controlled buys

outlined in the affidavit and the affiant’s contention that cell phones are common

tools of drug traffickers, there was “a fair probability” that any cell phones recovered

during the search of Appellant’s residence would contain evidence connected to drug

trafficking. See Baldwin, 278 S.W. 3d at 371. As a result, the affidavit was sufficient

to show probable cause for the search and seizure of Appellant’s cell phone, and the

trial court would not have erred by overruling such an objection. See Vaughn, 931

S.W.2d at 566.

      Next, Appellant contends that his trial counsel failed to make an objection for

relevance or prejudice of the photos found on Appellant’s cell phone. However, the

record shows that trial counsel did make those objections, and the objections were

overruled. Appellant does not challenge the validity of those rulings. Accordingly,

trial counsel cannot be deficient for failing to make relevance and prejudice

objections, when he actually did make those objections. See Thompson, 9 S.W.3d

at 813 (“allegations of ineffectiveness must be firmly founded in the record and the

record must affirmatively demonstrate the alleged ineffectiveness”).

C.    Admission of Drug Ledger

      Appellant argues that trial counsel’s performance was deficient for failure to

object to the admission of the drug ledger. Appellant contends that the ledger should

not have been admitted because it lacked authentication and it was also “personal



                                          13
writings” and, therefore, exempt from an evidentiary search warrant’s search and

seizure.

      For authentication, “[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.” Butler v. State, 459

S.W.3d 595, 600 (Tex. Crim. App. 2015) (quoting TEX. R. EVID. 901(a)). In a jury

trial, the trial court needs to make the “preliminary determination that the proponent

of the item has supplied facts sufficient to support a reasonable jury determination

that the proffered evidence is authentic” and leave to the jury the ultimate

determination of whether the item is what the proponent claims it is. Id. (citing

Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)). The preliminary

authentication requirement can be satisfied by showing “distinctive characteristics

and the like: appearance, contents, substance, internal patterns or other distinctive

characteristics, taken in conjunction with circumstances.” Druery v. State, 225

S.W.3d 491, 502 (Tex. Crim. App. 2007) (quoting TEX. R. EVID. 901(b)(4)). A trial

court’s determination of whether or not a proponent has met the threshold

requirement for the preliminary determination of authenticity is subject to an abuse

of discretion review and as long as the determination is within the “zone of

reasonable disagreement” then the decision should not be countermanded. Butler,

459 S.W.3d at 600; Tienda, 358 S.W.3d at 639.



                                          14
      Appellant argues that the facts of this case resemble United States v. Jackson,

636 F.3d 687 (5th Cir. 2011). The ledger in Jackson had been produced by the

defendant’s alleged co-conspirator during a proffer session “under circumstances

that raise questions in and of themselves.” Id. at 693. The court held that the ledger

allegedly containing cocaine records was not properly authenticated because no

member of the drug-trafficking organization testified to its trustworthiness and

because the investigating officer could not personally vouch for its credibility. Id.

at 693–94.

      The state argues that U.S. v. Wake is a more applicable case. 948 F.2d 1422

(5th Cir. 1991). In Wake, the contents of Wake’s wallet and tally sheets found in his

office were admitted into evidence. Id. at 1434. The contents of Wake’s wallet

contained a sheet with code numbers, names, and telephone numbers. Id. The tally

sheets found in Wake’s office “contained code numbers, numbers representing

quantities of drugs, and amounts of money.” Id. The government used testimony

from one of the investigating officers to authenticate the writings. Id. The court in

Wake noted that circumstantial evidence may be used to authenticate documents,

handwriting analysis was not required, and the contents of the documents could be

used to identify its declarant. Id. at 1434–35. Finally, the court determined that the

contents of Wake’s wallet and the tally sheets from his office were properly




                                         15
authenticated and that there was “no error, much less the requisite abuse of

discretion.” Id. at 1435.

      Similar to Wake, the ledger was found in Appellant’s house when and where

he was arrested; so the circumstance of its recovery support authentication. See id

(authenticated code sheet was found in defendant’s wallet and authenticated tally

sheet found in his office). In addition, the investigating officer was able to provide

testimony that the ledger contained names and monetary amounts that corresponded

with prior drug transactions that were connected to Appellant.         See id.    The

circumstances of how the ledger was found and the expert testimony about its

contents are sufficient evidence to support a preliminary determination that a

reasonable jury could determine that the ledger was what the state purported it to be.

See Butler, 459 S.W.3d at 600. The ledger was sufficiently authenticated to be

admissible. See Id.; Tienda, 358 S.W.3d at 639. Thus, the trial court would not have

been in error if it had overruled an objection based on authenticity of the ledger by

trial counsel. See Vaughn, 931 S.W.2d at 566; Jacoby, 227 S.W.3d at 131.

      Appellant also contends that the ledger constituted “personal writings” and

that it was precluded from seizure under Texas Code of Criminal Procedure.3 See



3
      The accused’s personal writings are not to be included in a search warrant for
      property or items “constituting evidence of an offense or constituting evidence
      tending to show that a particular person committed an offense.” TEX. CRIM. PROC.
      CODE ANN. art 18.02(10) (Vernon Supp. 2015).

                                         16
Porath, 148 S.W.3d at 409; TEX. CRIM. PROC. CODE ANN. art 18.02(10). “Personal

writings refer to writings such as diaries, memos, and journals that were not intended

by the writer to be published to third parties.” Porath, 148 S.W.3d at 409 (citing

Reeves v. State, 969 S.W.2d 471, 486 (Tex. App.—Waco 1998, pet. ref’d)).

“[P]ersonal writings under article 18.02 are non-business writings only.” Nikrasch

v. State, 698 S.W.2d 443, 448 (Tex. App.—Dallas 1985, no pet.) (citing United

States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 1240–42 (1984)). It does not matter if

the writings pertain to legal business or illegal business, they are not exempt from

seizure under the personal writings exception of article 18.02(10). Id. (holding that

Appellant’s personal list of stolen property was illegitimate business writings and

did not constitute personal writings for article 18.02 purposes).

      At the time Appellant was arrested at his residence, the ledger was found in

the residence. It was admitted as evidence of the offense or evidence that tended to

show Appellant committed the offense of possession of a controlled substance with

the intent to deliver in a drug free zone. See TEX. CRIM. PROC. CODE ANN. art

18.02(10). In addition, the investigating officer testified that the writings in the

ledger were names that corresponded with purchases and debts. Since they were

indications of illegal narcotics trafficking and not portions of a journal or diary, the

writings in the ledger were not exempt from seizure from an evidentiary warrant

issued under article 18.02(10). See Nikrasch, 698 S.W.2d at 448. As a result, trial



                                          17
counsel could not be deficient for failing to object to the admission of admissible

evidence. See Ex parte Jimenez, 364 S.W.866, 887 (Tex. Crim. App. 2012).

D.    Admission of Search Warrant and Affidavit

      Appellant argues his trial counsel was ineffective for failing to object to the

admission of the search warrant and accompanying affidavit as a violation of his

right to confront witnesses and as hearsay.

      At trial, the State sought to introduce the search warrant and accompanying

affidavit that brought about Appellant’s arrest. Appellant’s trial counsel objected by

“reurg[ing] our objection based on the motion that was heard yesterday morning.”

That motion was a motion to suppress the evidence obtained as a result of the search

warrant based on an argument that the confidential informant was not reliable

enough to support the issuance of the search warrant. The trial court denied the

motion after the hearing, denied Appellant’s objection based on the motion, and

admitted the search warrant and affidavit. As Appellant points out on appeal, his

trial counsel did not raise Confrontation Clause or hearsay objections to the

evidence.

      The affidavit was prepared by Investigator Edwards prior to Appellant’s

arrest. In it, Edwards described the proof he had of drug activity at Appellant’s

resident. Much of the proof came from a confidential informant. Edwards averred




                                         18
that the confidential informant contacted him, claiming to be able to purchase

methamphetamine from two people, Greene and Hanselka, at their residence.

      Edwards and the informant made plans for the informant to make a controlled

buy at the residence. The informant contacted Hanselka, who agreed to sell him

drugs. After the controlled buy, the informant told Edwards he made the purchase

from Appellant. About a week later, Edwards and the informant conducted another

controlled buy. This time, the informant reported making the purchase from Greene.

      Based on this information, the search warrant was issued.

      “The Confrontation Clause of the Sixth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment, provides

that ‘[i]n criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him[.]’” Langham v. State, 305 S.W.3d 568, 575 (Tex.

Crim. App. 2010) (quoting U.S. CONST. amend. VI). Evidence of statements from a

confidential informant to a police officer used to obtain a search warrant violates the

Confrontation Clause, and such evidence cannot be admitted over an objection

raising that ground. See id. at 579–82 (holding that evidence of communication with

confidential informant used to “pave the way” for criminal prosecution was

testimonial, that evidence was offered and used for truth of matter asserted, that State

did not argue informant was unavailable, and that, accordingly, evidence violated

Confrontation Clause).



                                           19
       Likewise, the affidavit is hearsay. Hearsay is “a statement that (1) the

declarant does not make while testifying at the current trial or hearing; and (2) a

party offers in evidence to prove the truth of the matter asserted in the statement.”

TEX. R. EVID. 801(d). Hearsay is not admissible unless there is a rule or statute that

provides for its admission. TEX. R. EVID. 802. The affidavit contains Investigator

Edwards’s statements that were not made when he was testifying during Appellant’s

trial. Furthermore, the affidavit contains representations made by a confidential

informant to Edwards. The confidential informant did not make these statements

during trial or even testify at trial.

       Having determined it would have been error to overrule these objections had

they been made, we turn to whether the failure to object could have been a reasonable

trial strategy. See Vaughn, 931 S.W.2d at 566 (holding when ineffective assistance

claim is based on failure to object, defendant must show trial court would have erred

in overruling objection); Thompson, 9 S.W.3d at 813 (holding appellate courts

presume that counsel’s conduct falls within wide range of reasonable professional

assistance).

       As the State notes, Appellant’s defensive theory was that he was a drug user

living with drug dealers but was not personally a dealer. The State argues that

Appellant’s trial counsel could have chosen not to object because the second

transaction disclosed by the informant supports the defensive theory that Appellant



                                         20
was only a user. The informant told Investigator Edwards that he completed the

second drug transaction with Greene. This neither supports nor refutes the defense’s

theory that Appellant was only a user.          Accordingly, the informant’s second

transaction bore little relevance to whether Appellant was a dealer in addition to

being a user.

      In contrast, the informant’s first transaction undermines the defensive theory

that Appellant was only a user because it described Appellant dealing drugs. The

remainder of the State’s evidence against Appellant consisted of indicia of drug

dealing (such as materials commonly used in drug deals found with him at the time

of his arrest), but no direct proof of Appellant’s actual participation as a drug dealer.

      The State illustrated this in its closing argument. During its closing, the State

identified the evidence of what was found in the house during the search as proof of

Appellant being a drug dealer. After this summary, the State argued that, if this

evidence did not convince the jury, the search-warrant affidavit should. By the

State’s own argument, then, the informant’s description of the first drug deal

constituted the fallback piece of evidence that could persuade the jury if all other

evidence failed. There is no reasonable trial strategy for failing to properly object

to evidence that so undermines the defensive theory.

      The State also argues that trial counsel could have decided to admit it to attack

the testifying officer’s testimony. The exchange the State relies on is a less-than-a-



                                           21
page of testimony where Appellant’s counsel points out that the affidavit does not

mention Investigator Edwards searching the vehicle of the informant before the buys

and, accordingly, the drugs could have been hidden in the car. Edwards responded

that he did search the car but forgot to put it into the affidavit. No further mention

of this is made in the record. The State presents no argument for how this brief

exchange could have been calculated to sway the jury enough to risk admitting

evidence of Appellant’s direct involvement in a drug sale.

       Finally, we turn to whether Appellant was prejudiced by his attorney’s

performance. See Hernandez, 988 S.W.2d at 772; see also Johnson v. State, 169

S.W.3d 223, 228, 239 (Tex. Crim. App. 2005) (holding, if error is not attributable to

trial court and is not structural, then error is analyzed under Strickland for harm;

holding complete denial of right to testify by defense counsel is subject to Strickland

analysis); Langham v. State, 305 S.W.3d at 582 (holding Confrontation Clause error

is not structural).

       “In a possession with intent to deliver case, the State must prove that the

defendant: (1) exercised care, custody, control, or management over the controlled

substance; (2) intended to deliver the controlled substance to another; and (3) knew

that the substance in his possession was a controlled substance.” Parker v. State,

192 S. W. 3d 801, 805 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see also

TEX. HEALTH & SAFETY CODE ANN. § 481.112 (Vernon 2010), § 481.134 (Vernon



                                          22
Supp. 2015). By arguing that Appellant was only a user and not a dealer, Appellant

conceded at trial that he possessed the drugs and knew they were controlled

substances. Accordingly, the matter at issue at trial was whether Appellant intended

to deliver the drugs to another.

      “[I]ntent to deliver is a question of fact for the jury to resolve, and it may be

inferred from the acts, words, or conduct of the accused.” Taylor v. State, 106 S.W.

3d 827, 831 (Tex. App.—Dallas 2003, no pet.). Circumstantial evidence can be used

to establish intent. See Jordan v. State, 139 S.W. 3d 723, 726 (Tex. Crim. App.

2004). It can also be established by the testimony of experienced law enforcement

officers. Morrow v. State, 757 S.W.2d 484, 488 (Tex. App.—Houston [1st Dist.]

1988, pet. ref’d). The factors that courts have used to determine intent “include: (1)

the nature of the location where the defendant was arrested; (2) the quantity of drugs

the defendant possessed; (3) the manner of the packaging of the drugs; (4) the

presence or absence of drug paraphernalia (for use or sale); (5) whether the defendant

possessed a large amount of cash in addition to the drugs; and (6) the defendant’s

status as a drug user.” Jones v. State, 195 S.W.3d 279, 288 (Tex. App.—Fort Worth

2006), aff’d, 235 S.W.3d 783 (Tex. Crim. App. 2007). “The number of factors

present is not as important as the logical force the factors have in establishing the

elements of the offense.” Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d).



                                          23
      The evidence of intent, minus the affidavit, includes the 6.3 grams of meth

that was found under the table within arm’s reach of Appellant. Expert witness

testimony was provided at trial that the amount of meth possessed by Appellant was

more than what you would expect a user to have if it was just intended for personal

use. See Morrow, 757 S.W.2d at 488 (police officer testimony relevant to show that

the defendant possessed more cocaine than is normal if it is intended for personal

use). In addition, there was a pink camouflage case in bed with Appellant. This

case had over 50 small Ziploc baggies, syringes, a digital scale, a 100-gram metal

weight, a black light and a credit card reader. The case had all the necessary

paraphernalia that would be needed to perform a drug deal.

      There was a safe in Appellant’s room with $128 dollars in it. The money was

in small denominations.

      Appellant’s cell phone contained two pictures of what looked to be meth of

two different amounts, being weighted on what looks to be the scale found in

Appellant’s room.4 Every room in the house had a digital scale and a large amount

of unused baggies in it. The bedroom where Hanselka was found, contained a ledger




4
      The scale with the meth weighed out on it appears in the picture atop what appears
      to be the pink camouflage case that was found in Appellant’s room. The case in the
      photo has the letters “GNM” on it. The record shows that the case found in
      Appellant’s room had the letters “GNM” on it as well.

                                          24
that testimony established was a drug ledger used to keep track of who bought what

and who owed what. That bedroom also contained $329 in cash.

      There were various pipes and used syringes that indicated that Appellant was

a user. However, being a drug user and a drug dealer are not mutually exclusive.

Given the weight of all the other drug dealing paraphernalia, it is not reasonably

likely that the jury determination regarding intent would be different had the search

warrant and supporting affidavit been excluded. See Strickland, 466 U.S. at 694,

104 S. Ct. at 2052; Sorto, 173 S.W.3d at 472.

      We overrule Appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

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




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