Opinion filed January 29, 2015




                                        In The


          Eleventh Court of Appeals
                                     __________

                                 No. 11-12-00095-CR
                                     __________

                   JAMES WILLIAM SMITH, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 350th District Court
                                 Taylor County, Texas
                           Trial Court Cause No. 10035-D



                      MEMORANDUM OPINION
      The jury found James William Smith, Appellant, guilty of the offense of
possession of cocaine. 1     The jury found that Appellant had two prior felony
convictions for possession of cocaine and assessed punishment at confinement for

      1
        See TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (Penalty Group 1), § 481.115(b)
(Offense: Possession of Substance in Penalty Group 1) (West 2010).
eight years. The trial court sentenced Appellant accordingly. Appellant challenges
the sufficiency of the evidence to support his conviction, and he also asserts that he
received ineffective assistance of counsel. We affirm.
                                     I. The Charged Offense
       The grand jury indicted Appellant for possession of less than one gram of
cocaine with two prior felony convictions for possession of cocaine. Appellant’s
first prior conviction was a third-degree felony, and his second prior conviction
was a second-degree felony.
       A person commits the offense of possession of cocaine if he intentionally or
knowingly possesses cocaine. HEALTH & SAFETY §§ 481.102(3)(D), 481.115(a).
Possession of less than one gram of cocaine is a state jail felony. HEALTH &
SAFETY § 481.115(b).           A state jail felony with two prior felony convictions
becomes punishable as a second-degree felony, which shall be punished by
imprisonment “for any term of not more than 20 years or less than 2 years” and an
optional fine “not to exceed $10,000.” 2 TEX. PENAL CODE ANN. § 12.33 (West
2011) (Second Degree Felony Punishment), § 12.425(b) (West Supp. 2014)
(Penalties for Repeat and Habitual Felony Offenders on Trial for State Jail Felony).
       Appellant pleaded “not guilty” and proceeded to trial.
                                       II. Evidence at Trial
       Cati Schriver, a detective with the Abilene Police Department, testified that
she pulled Appellant over because she “thought [Appellant] would possibly be
intoxicated.” Detective Schriver testified that she turned on her “Coban” when she
began following Appellant and that the video accurately depicted what happened.3

       2
         The two previous convictions must not be state jail felony convictions, and the second previous
conviction must have occurred subsequent to the first previous conviction. PENAL § 12.425(b).
       3
         Detective Schriver explained that a “Coban” is a camera system mounted behind the rearview
mirror of the police car that records audio and video.


                                                   2
She called for a K-9 officer, and Officer Kevin Easley arrived five to seven
minutes later. She also performed a horizontal gaze nystagmus test on Appellant
and believed that he was not intoxicated.
      Officer Easley, a K-9 handler with the City of Abilene, had a K-9 named
Rocco at the time of Appellant’s arrest in this case. Officer Easley testified that he
received a call for a K-9 officer for a traffic stop, that Officer Schriver was the
officer involved, and that Appellant was the citizen who was stopped. Officer
Easley did not remember any other officers or citizens present. Officer Easley
advised Detective Schriver that the dog gave a positive alert; whereupon, Detective
Schriver searched Appellant. Detective Schriver testified that she found “small
off-white rock substances” in Appellant’s shirt pocket that she believed was crack
cocaine.
      Officer Easley testified that Rocco alerted to a piece of plastic on the ground
near Appellant’s pickup and to the driver’s door of Appellant’s pickup. Officer
Easley testified that, after Rocco made a positive alert, Officer Easley searched
Appellant’s pickup but did not find any drugs. He said that Detective Schriver
reported that she found “some small objects” on Appellant and that they suspected
it was crack cocaine. He also said that he tested the substance that Detective
Schriver seized from Appellant’s shirt pocket and that it tested positive for cocaine.
      Detective Schriver testified that State’s Exhibit No. 2 was the same envelope
that she signed into evidence into which she had placed the rocklike substance that
she took from Appellant’s shirt pocket. She placed a clear piece of tape on the
back of the envelope with her initials “half on half off the tape” to make it obvious
if anyone “breaks that seal” “because it won’t line up anymore.” After she signed
the envelope, she locked it in the evidence vault. One of three evidence clerks
moved it from the small vault lockbox “into the bigger,” and that person’s name
appeared on the envelope. Detective Schriver said that she knew the envelope was

                                            3
delivered to the “Texas Department of Safety’s laboratory” for analysis because
two seals appeared on the envelope: the person who took it from the police
department placed one seal, and the person who received it at the lab placed the
other seal. She also said that Jimmy Seals’s name appeared on the seal that
showed Seals took the envelope from the police department to the lab.
      On cross-examination, Detective Schriver testified that she pulled Appellant
over for weaving and speeding. Appellant’s trial counsel subsequently asked
Detective Schriver, “What caused you to go from speeding and weaving to drug
possession? . . . What about that event caused you to think that . . . you needed to
search him or his vehicle for drugs?” Detective Schriver answered, “Whenever we
stop somebody, we run their name through our system and I could see previous
history   of   drug   possession.”    Appellant’s    trial   counsel   objected    to
Detective Schriver’s answer and explained, “[T]he witness has testified to my
client’s prior record. . . . And we’re in the guilt and innocence phase of this, Your
Honor. There is no place for us to be getting into his prior record at this point.”
The trial court responded, “You opened the door . . . . That question just begs for
that response,” and overruled the objection.
      Detective Schriver also testified on cross-examination that she had stopped
Appellant once prior to this stop, had called the drug dog, had searched Appellant,
and had not found any drugs in Appellant’s vehicle or on his person during the
prior stop. She agreed that she had made a mistake about drug possession the
previous time she pulled Appellant over. She also agreed that she was mistaken
during the second stop when she thought that Appellant was intoxicated. She said
that the objects found in Appellant’s shirt pocket were “small pieces of an off-
white rocklike substance” “approximately the size of a BB,” that “there was more
than one,” and that “[t]hey were all small. They looked as if maybe they had
crumbled.”

                                         4
        William Chandley, a chemist with the drug section of the Department of
Public Safety’s crime lab, testified that he recognized the envelope labeled as
State’s Exhibit No. 2, that he tested the substance contained in it, and that
Appellant’s name appeared as the suspect on the report and the submission form.
Chandley testified that he received the envelope from Seals, the “evidence person”
for the Abilene Police Department. Chandley testified that the envelope did not
“appear to have been tampered with in any way” when he received it. Chandley
testified that he analyzed the contents of the envelope and determined that it
contained .03 grams of cocaine. On cross-examination, Chandley testified that
State’s Exhibit No. 2 contained a powder and that he received it from the police
department in powder form.
        Detective Schriver’s “Coban” video showed that she followed Appellant.4
Officer     Easley      and     Rocco       walked      around      Appellant’s        pickup      after
Detective Schriver pulled Appellant over. Rocco looked back and forth from the
ground to Officer Easley. Officer Easley picked up something that was on the
ground and searched the cab of Appellant’s pickup.
        The video also showed that Detective Schriver performed the horizontal
gaze nystagmus test on Appellant while the K-9 unit walked around and searched
the pickup. Detective Schriver determined that Appellant was not intoxicated
while Officer Easley searched the cab of Appellant’s pickup. Detective Schriver
subsequently began to search Appellant. Detective Schriver pulled out several
objects, including a razor blade, from Appellant’s shirt pocket. Detective Schriver
talked with Officer Easley about what she had found. Detective Schriver arrested
Appellant and told him that the “little white rocks” she had pulled out of his shirt
“tested positive.”

        4
          The record shows that both the State and Appellant agreed to stop the video at a certain point,
but the record does not state when. We will describe the pertinent facts contained in the video.


                                                   5
                                III. Issues Presented
      Appellant presents two points of error on appeal. In the first point, he
challenges the sufficiency of the evidence to convict him. In the second point, he
asserts that he received ineffective assistance of counsel.
                               IV. Standard of Review
      We apply the sufficiency standard outlined in Jackson and its progeny to
Appellant’s sufficiency point. Jackson v. Virginia, 443 U.S. 307, 318 (1979);
Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010); Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007).            We review all of the evidence
introduced by both the State and Appellant in the light most favorable to the jury’s
verdict and decide whether any rational jury could have found each element of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We rely on the jury
to resolve conflicts in the evidence, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. See id. We review all evidence,
whether the trial court properly or improperly admitted it. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). With respect to Appellant’s complaint
of ineffective assistance of counsel, we apply the well-recognized standard of
review from Strickland v. Washington, 466 U.S. 668, 686 (1984).
                                     V. Analysis
      A. Point One: Sufficiency of the evidence
      Appellant challenges the sufficiency of the evidence to support his
conviction because the State, he asserts, did not prove the chain of custody of the
cocaine. He complains that a break in the chain of custody existed between
Detective Schriver, who booked the substance into police evidence, and Chandley,
who received the substance at the lab. Appellant asserts that the change from the
“rocklike substance” that Detective Schriver seized from Appellant’s shirt pocket
to the “powder” that the lab received “gives rise to an inference that tampering or

                                          6
alteration took place.” Appellant did not object to the admission of State’s Exhibit
No. 2 and does not challenge its admission on appeal.
       The evidence showed that Rocco made a positive alert for drugs on the piece
of plastic that fell to the ground.      Detective Schriver subsequently searched
Appellant and found crumbled, off-white rocklike pieces of what she thought was
crack cocaine in his shirt pocket. Officer Easley performed a preliminary field test
on the rocklike substance, and it tested positive for cocaine.
       Detective Schriver placed the rocklike substance that she took from
Appellant’s shirt pocket into an envelope; signed her name on the envelope, along
with her initials and the date of the arrest; and placed tape on the back with her
initials “half on half off the tape.” Detective Schriver locked the envelope in the
evidence vault, and the clerk’s name appeared on the envelope along with a seal
that showed that Seals took the envelope to the DPS lab. State’s Exhibit No. 2 was
that same envelope, and the case number on the envelope corresponded with
Appellant’s case. Chandley received the envelope from Seals and testified that it
had not been tampered with. Chandley tested the substance in the envelope and
found that it contained .03 grams of cocaine.
       No evidence in the record indicated that anyone tampered with the envelope;
therefore, the jury was free to infer that the crumbled, rocklike substance became a
powder between the time Detective Schriver booked it into evidence and the time
Chandley received it at the lab. See Jackson, 443 U.S. at 319; see, e.g., Samaniego
v. State, No. 03-01-00718-CR, 2002 WL 1724016, at *4 (Tex. App.—Austin July
26, 2002, no pet.) (not designated for publication) (holding that “[t]here is no
reason to believe the evidence did not simply deteriorate by breaking down from
‘rock’ form to granular form over the time between the seizure and its presentation
at trial”).   The evidence was sufficient for a rational jury to find beyond a



                                          7
reasonable doubt all of the elements of the offense of possession of cocaine by
Appellant. See Jackson, 443 U.S. at 319. We overrule Appellant’s first point.
      B. Point Two: Ineffective assistance of counsel
      Appellant asserts that he received ineffective assistance from his trial
counsel. Specifically, Appellant complains that his trial counsel’s performance
was deficient because counsel opened the door to Appellant’s criminal history,
failed to request a limiting instruction or jury instruction in the charge, “failed to
object or preserve error for appeal on the issue of chain of custody or admission of
the substance alleged to be cocaine,” and “failed to object to or file a pretrial
motion to exclude the mention or use of field tests.”
      The benchmark for evaluating an ineffective-assistance-of-counsel claim is
whether counsel’s conduct “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. The Strickland test has two prongs: (1) a
performance standard and (2) a prejudice standard.            Id. at 687.    For the
performance standard, we must determine whether Appellant has shown that
counsel’s representation fell below an objective standard of reasonableness. Id. If
so, we then determine whether there is a reasonable probability that the outcome
would have differed but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510, 534
(2003); Strickland, 466 U.S. at 686; Andrews v. State, 159 S.W.3d 98, 102 (Tex.
Crim. App. 2005).
      The reasonable probability must rise to the level that it undermines
confidence in the outcome of the trial. Isham v. State, 258 S.W.3d 244, 250 (Tex.
App.—Eastland 2008, pet. ref’d). A failure to make a showing under either prong
of the Strickland test defeats a claim of ineffective assistance of counsel. Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Andrews, 159 S.W.3d at 101.
A reviewing court need not consider both prongs of the Strickland test and can

                                          8
dispose of an ineffectiveness claim on either prong. Walker v. State, 406 S.W.3d
590, 594 (Tex. App.—Eastland 2013, pet. ref’d) (citing Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App. 2012)); see Strickland, 466 U.S. at 697.
      The first prong of Strickland requires Appellant to establish that trial counsel
provided deficient assistance of counsel. There is a strong presumption that trial
counsel’s conduct fell within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689; Isham, 258 S.W.3d at 250. To overcome
this deferential presumption, an allegation of ineffective assistance must be firmly
founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999). In most cases, a silent record that provides no explanation for counsel’s
actions will not overcome the strong presumption of reasonable assistance. Id.
Appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648
(Tex. App.—Eastland 2005, pet. ref’d). Generally, the record on direct appeal will
not be sufficient to show that trial counsel’s representation was so lacking as to
overcome the presumption of reasonable conduct. Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002).
      We do not inquire into trial strategy unless no plausible basis exists for trial
counsel’s actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel
Op.] 1981). When the record contains no evidence of the reasoning behind trial
counsel’s actions, we cannot conclude that counsel’s performance was deficient.
Jackson, 877 S.W.2d at 771. If trial counsel cannot explain the challenged actions,
then we will not conclude that those actions constituted deficient performance
unless they were so outrageous that no competent attorney would have engaged in



                                          9
them. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
             1. Opening the door
      Evidence of other crimes, wrongs, or acts is inadmissible at the
guilt/innocence phase of trial to show the accused’s conformity with those other
acts. TEX. R. EVID. 404(b); Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim.
App. 1992). An accused may make otherwise inadmissible evidence admissible,
however, by “opening the door” through questions that elicit testimony about the
extraneous offenses. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009).
      The record shows that Appellant’s trial counsel unintentionally elicited
testimony about Appellant’s criminal history.         The trial court admitted that
testimony over counsel’s objections, ruling that counsel had “opened the door by
the nature of [his] question in this proceeding.” Appellant has failed to show by a
preponderance of the evidence that a reasonable probability exists that, but for
counsel’s error, the result of the proceeding would have been different.           See
Strickland, 466 U.S. at 687.
             2. Limiting instruction
      Appellant complains that he was prejudiced when his trial counsel did not
request a limiting instruction subsequent to his opening the door to extraneous
offenses. Appellant cites to Ex parte Varelas, 45 S.W.3d 627, 631–32 (Tex. Crim.
App. 2001), to support his position. In Varelas, the defendant’s counsel failed to
request a burden of proof or limiting instruction after the trial court admitted State-
offered evidence of an extraneous offense. 45 S.W.3d at 631. In Varelas, a habeas
proceeding, the Court of Criminal Appeals had before it an affidavit from
Varelas’s trial counsel regarding his oversight, as opposed to trial strategy, in
failing to request a limiting instruction. Id. at 632. Moreover, the Court of

                                          10
Criminal Appeals in Varelas recognized that the appellate record on direct appeal
is usually inadequate to develop a claim of ineffective assistance. Id. at 629–30.
Without evidence in the record, we will not speculate why Appellant’s trial counsel
did not request a limiting instruction. See Delgado v. State, 235 S.W.3d 244, 250
(Tex. Crim. App. 2007) (noting that “the decision of whether to request a limiting
instruction concerning the proper use of certain evidence, including extraneous
offenses, may be a matter of trial strategy”); Johnson, 614 S.W.2d at 152; cf. Ex
parte Varelas, 45 S.W.3d at 632 (using affidavit from trial counsel in habeas
proceeding to determine whether actions at trial were result of trial strategy). We
cannot conclude, based on a silent record, that counsel’s failure to request a
limiting instruction was deficient; nor can we conclude that it was so outrageous
that no competent attorney would do likewise. See Jackson, 877 S.W.2d at 771
(holding that lack of evidence in record of trial counsel’s reasons for actions
precludes court from concluding that trial counsel’s performance was deficient);
see, e.g., Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (holding
that counsel’s decision to not request a limiting instruction was not an
unreasonable trial strategy because a request may have drawn “more attention to
the incriminating evidence”).
            3. Chain of custody
      The State offered State’s Exhibit No. 2, which contained cocaine, without
objection from Appellant’s trial counsel.     The record does not explain why
Appellant’s trial counsel did not object to State’s Exhibit No. 2; therefore, we
cannot conclude that his actions were deficient. See Jackson, 877 S.W.2d at 771.
Counsel’s actions were not so outrageous that a competent attorney would have
done otherwise. See Goodspeed, 187 S.W.3d at 392; see, e.g., O’Donoghue v.
State, No. 13-09-329-CR, 2010 WL 2783746, at *5 (Tex. App.—Corpus Christi
July 15, 2010, pet. ref’d) (mem. op., not designated for publication) (holding that

                                        11
trial counsel’s failure to object to the chain of custody of certain evidence was not
outrageous).
               4. Field test
      Appellant’s trial counsel did not object to any testimony related to
Officer Easley’s field test of the substance that Detective Schriver seized from
Appellant, and no evidence exists in the record to show why Appellant’s trial
counsel acted in this manner. Without such evidence, we cannot conclude that his
actions were deficient. See Jackson, 877 S.W.2d at 771. Counsel’s actions were
not outrageous because Chandley’s testimony that the substance tested positive for
cocaine would make the introduction of the field test harmless error.            See
Goodspeed, 187 S.W.3d at 392; Bonner v. State, No. 11-93-159-CR, 1994 WL
16189698, at *2 (Tex. App.—Eastland Dec. 1, 1994, pet. ref’d) (not designated for
publication) (citing Hicks v. State, 545 S.W.2d 805, 809–10 (Tex. Crim. App.
1977)) (holding that “any error brought about by counsel’s failure to object [to an
inadmissible field test] was rendered harmless upon the introduction of . . . the
chemist’s report”). For counsel’s actions or omissions related to the limiting
instruction, the chain of custody, and the field test, we do not reach the prejudice
prong of Strickland because Appellant has failed to satisfy the deficient-
performance prong. See Perez, 310 S.W.3d at 893. We overrule Appellant’s
second point.
                                  VI. Conclusion
      After reviewing the record, we hold that there was sufficient evidence for a
rational jury to have found beyond a reasonable doubt all of the elements for the
offense of possession of cocaine by Appellant. See Jackson, 443 U.S. at 318. We
also hold that Appellant has not satisfied both prongs under Strickland as required
to sustain his claim of ineffective assistance of counsel. See Strickland, 466 U.S.
at 686.

                                         12
                              VII. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


January 29, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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