                                        NO. 07-07-0076-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL E

                                         AUGUST 20, 2008

                             ______________________________


                              TRACY LYNN WARE, APPELLANT

                                                   v.

                              THE STATE OF TEXAS, APPELLEE


                           _________________________________

              FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                      NO. 17,603-C; HON. ANA ESTEVEZ, PRESIDING

                             _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

                                      Memorandum Opinion

        In this appeal, appellant Tracy Lynn Ware seeks reversal of his conviction of

delivery of a controlled substance in a drug-free zone and the resulting punishment of forty-

five years confinement in the Institutional Division of the Texas Department of Criminal

Justice. In doing so, he presents five issues for our decision. In those issues, he argues:

1) and 2) the evidence is legally and factually insufficient to support the conviction; 3) the


        1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon 2008).
trial court erred by overruling his motion to dismiss the complaint because of a violation of

article 32.01 of the Texas Code of Criminal Procedure; and 4) and 5) he received

ineffective assistance of trial counsel because of counsel’s failure to properly pursue

appellant’s pro se motion to dismiss the prosecution due to a violation of article 32.01 of

the Texas Code of Criminal Procedure which he filed prior to the appointment of his trial

counsel. Disagreeing that reversible error is shown, we affirm the judgment of the trial

court.

         Logical continuity requires that we initially discuss appellant’s issues three, four and

five inasmuch as they deal with pretrial matters. In relevant part, article 32.01 of the Code

of Criminal Procedure provides “[w]hen a defendant has been detained in custody or held

to bail for his appearance to answer any criminal accusation, the prosecution, unless

ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and

the bail discharged, if indictment or information be not presented against such defendant

on or before the last day of the next term of the court which is held after his commitment

or admission to bail or on or before the 180th day after the date of commitment or

admission to bail, whichever is later.” Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon

2006). Parenthetically, the dismissal is not automatic as the State does have the right to

show good cause for the failure to comply with the time requirement of article 32.01.

         The record reflects that appellant was first charged in a November 2005 complaint

but was not actually indicted until June 14, 2006. Thus, after the expiration of 180 days

from the date he was first charged, appellant was entitled to a dismissal of the complaint,

and, arguably, entitled to be discharged from custody. He filed a pro se motion seeking

dismissal on May 30, 2006, and, one day later, an attorney was appointed to represent

                                                2
him. However, subsequent to the appointment of his attorney, no hearing was scheduled

or held regarding appellant’s motion to dismiss, and, on June 13, 2006, he filed a motion

seeking to remove his attorney because of an alleged failure to properly pursue the

dismissal motion. Appellant was then indicted on June 14, 2006, thereby mooting his

motion to dismiss. It is the alleged failure of his attorney to pursue that motion that gives

rise to appellant’s claims of deprivation of constitutional rights and ineffective assistance

of counsel.

       In Ex parte Countryman, 226 S.W.3d 435 (Tex. Crim. App. 2007), the Court had

occasion to consider the effect of a failure to return an indictment within the time limits

prescribed by article 32.01. In that case, because of such a failure, the appellant filed an

application for writ of habeas corpus to have the prosecution dismissed. After the filing of

the application, but before the trial court held a hearing on the writ application, an

indictment was returned. The trial court denied the writ giving rise to an appeal. The Court

of Appeals reversed the trial court and ordered the dismissal of the indictment because of

the failure to indict within the 180-day time period. En route to reversing the Court of

Appeals’ decision, the Court of Criminal Appeals held that in the face of an otherwise

timely indictment, the failure to return an indictment within the 180-day period was not fatal

to the prosecution. Id. at 438-39. It is true that in Countryman, the appellant was confined

under a “blue warrant” for a parole violation and would not have been released from

confinement even if his motion had been granted. However, the Court’s discussion of the

effect of a failure to comply with article 32.01 is still cogent and applicable. Thus, the

failure to return an indictment within the 180-day period would not have required the

dismissal of the proceeding so long as the indictment was timely returned.

                                              3
       In the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), as adopted by our Court of Criminal Appeals in Hernandez v. State,

726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986), the Court set out the test that must be

satisfied to establish an ineffective assistance of counsel claim. To show that trial counsel

was ineffective, an appellant must demonstrate that: 1) trial counsel’s performance was

deficient because it fell below an objective standard of reasonableness; and 2) a probability

sufficient to undermine confidence in the outcome existed that, but for counsel’s

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

scrutiny of counsel’s performance must be highly deferential and a reviewing court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance and that counsel’s conduct might be considered sound

trial strategy. Strickland v. Washington, 466 U.S. at 687- 689; Young v. State, 991 S.W.2d

835, 837 (Tex. Crim. App. 1999). Thus, in this case, to demonstrate ineffective assistance

of counsel, appellant must have shown that a properly prepared and diligent attorney would

have convinced the trial court to grant his motion to dismiss pursuant to article 32.01.

       As we have noted, appellant contends that his trial counsel was ineffective because

he failed to pursue appellant’s pro se motion to dismiss pursuant to article 32.01 of the

Code of Criminal Procedure. However, failure to file or pursue pretrial motions generally

does not per se demonstrate ineffective assistance of counsel. For example, it has been

held that the failure to file a suppression motion or obtain a ruling on such a motion does

not, in and of itself, demonstrate ineffective assistance. Wills v. State, 867 S.W.2d 852,




                                             4
857 (Tex. App.–Houston [14th Dist.] 1993, pet. ref’d); Yuhl v. State, 784 S.W.2d 714, 717

(Tex. App.–Houston [14th Dist.] 1990, pet. ref’d).

       If an appellant fails to make a showing that a ruling on a pretrial motion would have

changed anything in the case, he has failed to establish ineffective assistance. Roberson

v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993). Additionally, even assuming that

trial counsel should have presented appellant’s pre-indictment motion to dismiss, appellant

must have shown how he was prejudiced by the failure, for example, by showing that a

“properly prepared attorney” would have persuaded the trial court to grant the motion. See

Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (holding appellant is

required to show the motion to suppress would have been granted to demonstrate

ineffective assistance of counsel).

       The record shows that appellant filed his motion to dismiss on May 30, 2006.

Counsel for appellant was appointed on June 1, 2006. The indictment was returned on

June 14, 2006. Because the indictment was timely returned, appellant’s motion became

moot, and would not have been granted under the circumstances we have iterated above.

Accordingly, appellant has not satisfied his burden to show ineffective assistance on this

ground. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

       Additionally, we have carefully reviewed the record, and, from the totality of

counsel’s actions, it is clear that appellant did receive effective assistance of counsel. Trial

counsel properly and successfully argued pretrial matters before the trial court,

appropriately and effectively cross-examined the State’s witnesses, and made appropriate

objections at various points in the proceedings. Moreover, counsel presented persuasive



                                               5
closing arguments. In sum, appellant did receive effective trial representation. Thus, his

issues three, four, and five do not present reversible error and are overruled.

       We next move to consider appellant’s contentions that the evidence produced at

trial was legally and factually insufficient to support his conviction. When such a two-fold

challenge is presented, we must first determine whether the evidence is legally sufficient

to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In

considering that challenge, we must review all the evidence in the light most favorable to

the prosecution and determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); McKinney v. State, 207 S.W.3d 366,

374 (Tex. Crim. App. 2006). In doing so, we may not sit as a thirteenth juror, but must

uphold the jury’s verdict unless it is irrational or supported by no more than a mere

modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

       Even so, evidence supporting guilt, though legally sufficient, may be factually

insufficient because it is so weak that the jury’s verdict seems clearly wrong and manifestly

unjust, or because evidence contrary to the verdict is such that the jury’s verdict is against

the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618,

625 (Tex. Crim. App. 2006). In conducting our factual sufficiency review, we must

remember that it is the exclusive province of the jury to determine the credibility of the

witnesses and the weight to be given their testimony, and unless the record demonstrates

a different result is appropriate, we must defer to the jury’s determination. Johnson v.

State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).



                                              6
       In this case, appellant was charged with intentionally or knowingly delivering, by

making an actual transfer from himself to David Ponce, cocaine in an amount of more than

four grams but less than 200 grams. Thus, the State had the burden to prove beyond a

reasonable doubt that appellant 1) intentionally or knowingly; 2) delivered by actual

transfer to David Ponce; 3) cocaine in an amount more than four grams but less than 200

grams. Tex. Health & Safety Code Ann. §481.115(d) (Vernon 2003). At trial, the State

proceeded under the theory that appellant was a party to the offense. To convict under the

law of parties, the State must have shown that appellant acted with the intent to promote

or assist the offense by soliciting, encouraging, directing, aiding or attempting to aid the

other person in the commission of the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon

2003). Thus, to establish delivery of a controlled substance as a party, the State must

have established that 1) another person possessed the contraband with the intent to

deliver; and, 2) that the defendant, with the intent that the offense be committed, solicited,

encouraged, directed, aided, or attempted to aid the other’s possession. Woods v. State,

998 S.W.2d 633, 636 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d). Knowledge of the

presence of the cocaine is a required element for conviction both as a principal and as a

party to the offense. Robinson v. State, 174 S.W.3d 320, 325 (Tex. App.–Houston [1st

Dist.] 2005, pet. ref’d).

       At trial, the State presented evidence through witness testimony, video and audio

surveillance, photographs, and tangible evidence, that on November 17, 2005, the date in

question, Officer David Ponce, a narcotics agent, who averred that he had purchased

narcotics previously from Glen Hooper, had arranged with Hooper by telephone, in a “buy-

bust” operation, to purchase $4,000 worth of crack cocaine. The surveillance tape showed

                                              7
appellant sitting in a red Monte Carlo automobile in a parking lot at an apartment complex

which was later discovered to be appellant’s residence. Appellant was approached by

Hooper, then carrying a small child, and a brief conversation ensued. Hooper then took

the child to some unidentified location and returned to the car which was operated by

appellant. Appellant and Hooper left the apartment complex and then later returned to the

parking lot. Upon their return, Hooper got out of the automobile, and got into a vehicle

driven by Officer Ponce. As he did so, there was testimony that Officer Ponce looked over

to the red Monte Carlo, and he and appellant waved and greeted each other.

      While Hooper was in the officer’s car, the officer paid money to Hooper and received

some crack cocaine. At that time, another law enforcement agent gave a signal and an

arrest team moved in and arrested both appellant and Hooper. The evidence established

that the cocaine received by Officer Ponce was in an amount of at least four but less than

200 grams. It was also established that the transaction took place within 1000 feet of a

premises operated by a school.

      In testimony regarding the relationship between appellant and Hooper, the State

presented the testimony of Carol McKnight, appellant’s ex-girlfriend. Ms. McKnight averred

that appellant lived with her at the apartment complex where the transaction took place.

She also testified that Hooper stayed overnight at the apartment she shared with appellant.

She said that neither appellant nor Hooper had a job while she knew them and that Hooper

obtained his income from selling crack cocaine. She also averred that appellant and

Hooper had discussions about selling crack cocaine and that she witnessed conversations

between appellant and Hooper concerning a sale that would take place in November 2005

to Officer Ponce (known as “Big Dave”), and that Hooper told appellant that the sale was

                                            8
a “big lick” and that when the sale was complete, he, Hooper, would “half” the profit. She

also testified that in correspondence with appellant after his arrest, appellant admitted his

knowledge of the deal but said that he couldn’t be convicted because all he did was drive

the car and that he was going to pretend that he didn’t know anything about the

transaction.

       Hooper testified and denied that appellant had anything to do with the sale. Officer

Vernon Wilson testified that he was working as an undercover narcotics agent at the time

in question and he was standing next to appellant while he was handcuffed and that

appellant did not personally deliver any drugs and he did not see appellant handling either

the drugs or money involved in the transaction.

       Summarized, the testimony in the case was conflicting as to appellant’s participation

in the drug transaction. The State’s evidence, if accepted by the jury, was sufficient to

show that appellant resided at the apartment complex where the transaction took place.

It was undisputed that Hooper was involved in a previously set up drug purchase and

delivery. The State presented testimony that Hooper had been involved in previous drug

transactions, that appellant had talked to Hooper about the drug transaction before it took

place and was to receive part of the purchase price of the drugs, that appellant was the

driver of the vehicle in which the drugs were transported, that he drove to and remained

at the scene prior to and during the transaction, and that he remained in the car with the

engine running while Hooper delivered the drugs to Officer Ponce. The State also

produced Ms. McKnight’s averment that appellant had admitted his knowledge of the

transaction.



                                             9
       Reiterated, as the factfinder, the jury is the exclusive judge of the credibility of the

witnesses and the weight to be given their testimony. Hernandez v. State, 190 S.W.3d

856, 863-64 (Tex. App.–Corpus Christi 2006, no pet.). In performing that function, the jury

is free to accept one version of the facts, reject another, or accept all or a part of a

witness’s testimony. Our review of the record clearly shows that the jury acted well within

its province in concluding appellant was guilty of the charge against him. Appellant’s first

two points are overruled.

       In final summary, all of appellant’s points of error are overruled, and the judgment

of the trial court is affirmed.



                                                   John T. Boyd
                                                   Senior Justice



Quinn, C.J., concurs in result.



Do not publish.




                                              10
