Opinion issued September 29, 2016




                                    In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                           NO. 01-15-00946-CR
                         ———————————
                     JASON LEE RIGSBY, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee


             On Appeal from the 412th Judicial District Court
                         Brazoria County, Texas
                      Trial Court Case No. 73605


                       MEMORANDUM OPINION

     Appellant, Jason Lee Rigsby, was found guilty by a jury of the offense of

possession of a controlled substance, namely, methamphetamine, weighing less
than one gram.1 The trial court sentenced Appellant to two years in state jail,

suspended the sentence, placed him on community supervision for five years, and

assessed a $100 fine. In one issue, Appellant contends that he was denied effective

assistance of counsel at trial.

      We affirm.

                                    Background

      On April 29, 2014, around midnight, Deputies Tubbs, Davis, and Gutierrez

of the Brazoria County Sheriff’s Office went to a residence in Sweeny, Texas to

serve a felony arrest warrant on Shane McCain.         When they arrived at the

residence, the deputies split up.    Deputy Gutierrez went to the back of the

residence, and Deputies Davis and Tubbs stayed in the front area of the house. At

the back of the home, Deputy Gutierrez saw a truck parked under a carport. The

passenger side door was open. McCain was standing in front of the door near the

truck’s passenger side headlight.

      Appellant was on the driver’s side of the truck. The driver’s side door was

open, and Appellant was standing behind the door in between the door and the

front seat. Deputy Gutierrez drew his service weapon and instructed the two men

to put their hands up. Initially, McCain and Appellant both raised their hands, but

then, Appellant lowered his hands. Deputy Gutierrez later testified that he did not

1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(b) (Vernon
      2010).

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know if, at that point, Appellant was reaching for a weapon or whether Appellant

was putting something down. Deputy told Appellant to put his hands back up and,

after a couple of seconds, Appellant complied.        Deputy Gutierrez instructed

McCain to place his hands on the hood of the truck.

      When Deputies Davis and Tubbs heard Deputy Gutierrez yell, “Get your

hands up. Get your hands up,” they ran from the front of the residence to the back.

Once there, the two officers saw McCain standing in front of the truck’s open

passenger door with his hands on the hood of the truck. They also saw Appellant

standing on the driver’s side behind the open door. When he first saw Appellant,

Deputy Tubbs noted that Appellant did not have his hands raised despite being

instructed by Deputy Gutierrez to do so.

      Deputy Davis detained McCain, placing him in handcuffs. On the other side

of the truck, Deputy Gutierrez directed his attention to Appellant.        Deputy

Gutierrez instructed Appellant to come around the open driver’s door to speak to

him. Appellant shut the driver’s side door and approached the front of the vehicle

to speak to Deputy Gutierrez. The deputy then had Appellant move to the back of

the truck where he patted Appellant down. Appellant told the officers that he had

borrowed the truck from his father, who owned the truck.

      In addition to McCain and Appellant, the deputies encountered a woman,

Ashley C., at the home. Deputy Davis was familiar with Ashley from other calls



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he had made to the home and knew that she had a romantic relationship with

McCain.

      While Deputies Davis and Gutierrez detained McCain and Appellant,

Deputy Tubbs walked around the area. He walked by the truck, shining his

flashlight inside it. Through the truck’s window, Deputy Tubbs saw a black and

clear canister laying on the driver’s side seat. Deputy Tubbs thought the canister

looked suspicious, believing it to contain crystal meth.     Deputy Tubbs called

Deputy Gutierrez over to look at the canister through the window.

      Deputy Gutierrez also thought that the canister contained crystal meth.

Deputy Gutierrez then requested Deputy Davis, who had more narcotics

experience, to look at the canister. Deputy Davis agreed that the canister appeared

to contain crystal meth. The deputies seized the canister and arrested Appellant.

McCain was arrested on the felony warrant. Later, laboratory testing confirmed

that the canister contained methamphetamine.

      In the indictment, Appellant was charged with “intentionally or knowingly

possess[ing] a controlled substance listed in Penalty Group One (1), namely,

methamphetamine and the amount of said controlled substance was, by aggregate

weight, including any adulterants and dilutants, less than one (1) gram.” At trial,

Deputies Tubbs, Davis, and Gutierrez testified for the State. A chemist with the




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Brazoria County Sheriff’s Office Crime Lab testified that her analysis determined

that the canister contained methamphetamine.

       At trial, Appellant’s counsel defended against the charge by raising the

prospect that the methamphetamine had been in the possession of McCain and not

Appellant. Counsel pointed out that the evidence showed that truck’s passenger

side door had been open and that McCain was standing on that side of the truck,

albeit in front of the open passenger door, when the officers arrive. Counsel

theorized that McCain knew that the officers were there to arrest him on a felony

warrant and McCain did not want to face an additional charge of illegal drug

possession. During closing argument, Appellant’s counsel suggested that McCain

had tossed the canister containing the methamphetamine into the truck when he

saw Deputy Gutierrez enter the back yard.

       The jury charge included the following instructions:

       A person commits the offense of possession of a controlled substance
       if the person knowingly or intentionally possesses a controlled
       substance and the controlled substance is, by aggregate weight,
       including adulterants and dilutants, less than one (1) gram. Under our
       law, methamphetamine is a controlled substance in Penalty Group 1.

....

       “Possession” means the actual care, custody, control, or management
       of the controlled substance.

       A person acts intentionally, or with intent, with respect to the nature
       of his conduct or to a result of his conduct when it is his conscious
       objective or desire to engage in the conduct or cause the result.


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      A person acts knowingly, or with knowledge, with respect to the
      nature of his conduct or to circumstances surrounding his conduct
      when he is aware of the nature of his conduct or that the
      circumstances exists. A person acts knowingly, or with knowledge,
      with respect to a result of his conduct when he is aware that his
      conduct is reasonably certain to cause the result.

      The jury found Appellant guilty of possession of a controlled substance as

charged in the indictment. The trial court assessed Appellant’s punishment at two

years’ confinement, suspended the sentence, placed him on community supervision

for five years, and assessed a $100 fine.

      Appellant filed a motion for new trial, asserting only that the “[t]he verdict

in this cause is contrary to the law and the evidence.” The motion was denied by

operation of law. This appeal followed.

                         Ineffective Assistance of Counsel

      In his sole appellate issue, Appellant contends that he received ineffective

assistance of counsel during the guilt-innocence phase of trial.

A.    Applicable Legal Principles

      To prevail on a claim of ineffective assistance of counsel, an appellant must

show the following: (1) counsel’s performance fell below an objective standard of

reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,

the result would have been different. See Strickland v. Washington, 466 U.S. 668,

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343 S.W.3d 137,



                                            6
142 (Tex. Crim. App. 2011). “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068.   In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that counsel’s performance falls within the wide range of reasonable

professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006).

      Appellant has the burden to establish both prongs by a preponderance of the

evidence. Jackson v. State, 973 S.W.2d 954, 956–57 (Tex. Crim. App. 1998). “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need

to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009).

B.    Analysis

      1.      Objecting to Hearsay Testimony

      Appellant asserts that his counsel’s performance at trial was deficient

because she did not object to certain hearsay statements elicited by the State during

its examination of Deputies Gutierrez, Tubbs, and Davis. In particular, Appellant

claims that trial counsel should have objected to testimony by Deputy Gutierrez in

which the officer stated, “I learned [from Ashley] that the crystal meth was

[Appellant’s] and they had consumed it prior to our arrival.” Appellant also



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complains that counsel should have objected to Deputy Davis’s testimony that “I

learned from Shane McCain on scene that the methamphetamine belonged to

[Appellant]” and to his statement that “I learned from Ashley [C.] that she didn’t

know whose methamphetamine it was [but] that [Appellant] had given her

methamphetamine to use just prior to our arrival.” Appellant further complains

that his counsel should have objected to Deputy Tubbs’s testimony that “I believe I

learned from Deputy Davis that he received information from Shane McCain that

that [the meth] was in fact [Appellant’s]” and to his statement that “I believe

[Ashley] said [Appellant] was in possession of [the meth] or he had given her some

before our arrival.”

      Even if we presume that he has satisfied the first Strickland prong by

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

reasonableness, Appellant does not meet his burden under the second Strickland

prong.   More precisely, Appellant has not shown that there is a reasonable

probability that the result of the proceeding would have been different had counsel

successfully challenged the complained-of hearsay testimony.

      A person commits an offense if he knowingly or intentionally possesses less

than one gram of methamphetamine. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102(6), 481.115(b) (Vernon 2010). To prove possession, the State must

show the accused (1) exercised control, management, or care over the contraband



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and (2) knew the substance possessed was contraband. Evans v. State, 202 S.W.3d

158, 161 (Tex. Crim. App. 2006); see also TEX. PENAL CODE ANN. § 1.07(a)(39)

(Vernon 2011) (defining “[p]ossession” as “actual care, custody, control, or

management”). Possession may be proved through either direct or circumstantial

evidence. Poindexter v. State, 153 S.W.3d 402, 405–406 (Tex. Crim. App. 2005);

see also Rice v. State, 195 S.W.3d 876, 881 (Tex. App.—Dallas 2006, pet. ref’d)

(stating jury could infer knowing or intentional possession of contraband).

      At trial, in addition to the complained-of testimony, the State’s evidence

showed the following:

    The canister, later confirmed to contain methamphetamine, was sitting in
     plain view on the truck’s driver’s side seat.

    Appellant stated that he had borrowed the truck from his father, who owned
     the vehicle.

    When the deputies arrived, Appellant was standing behind the truck’s open
     driver’s side door in front of the driver’s seat.

    The canister was within Appellant’s arms reach and was not within the reach
     of McCain.

    Although the passenger side door was open, McCain was standing in front of
     the truck’s passenger side door, near the front of the truck when Deputy
     Gutierrez first encountered the two men.

    Appellant lowered his hands after being told to raise his hands by Deputy
     Gutierrez.

    When Appellant lowered his hands, the deputies could not see whether
     Appellant was discarding something or grabbing a weapon.


                                         9
      The complained-of testimony aside, the foregoing evidence was more than

sufficient to support jury’s guilty verdict. From the evidence, the jury could have

reasonably inferred that Appellant knowingly or intentionally possessed the

methamphetamine; that is, that Appellant knowingly or intentionally exercised

actual control, management, or care of the methamphetamine.

      We also note that, during closing argument, Appellant’s counsel cited the

complained-of testimony to support the defensive theory that Appellant did not

knowingly or intentionally possess the drugs because it was likely McCain who

had tossed the drugs into the driver’s seat of the truck. In this regard, Appellant’s

counsel asserted that McCain’s and Ashley’s statements to police, indicating that

Appellant owned the drugs, were consistent with the defense’s theory that McCain

was attempting to distance himself from the drugs to avoid an additional felony

charge. And, during its closing statement, the State remarked that the reason it had

not called McCain or Ashley to testify was because McCain, a felon, and Ashley,

an admitted drug user, were not credible witnesses. Thus, any effect that the

hearsay testimony may have had on the jury was minimized by both sides’ closing

arguments.

      Given the evidence, we conclude Appellant has not shown that there is a

reasonable probability that but for his counsel’s alleged deficient performance of

failing to object to the complained-of hearsay testimony, the outcome of the

                                         10
proceeding would have been different. See Andrews v. State, 159 S.W.3d 98, 102

(Tex. Crim. App. 2005). Thus, we hold that Appellant has failed to satisfy the

second Strickland prong with regard to this complaint. See Cox v. State, 389

S.W.3d 817, 819 (Tex. Crim. App. 2012).

      2. Failure to Object to Comments on Weight of the Evidence and Legal
      Conclusions

      Appellant also complains that his trial counsel’s performance at trial was

deficient because she failed to object to certain testimony on grounds that the

testimony was a comment on the weight of the evidence or constituted an improper

legal opinion.   Specially, Appellant asserts that his trial counsel should have

objected to the following:

          Deputy Tubbs’ testimony that Appellant was “in possession” of the
           methamphetamine because “[h]is dad let him borrow the truck that
           night,” thereby making Appellant “responsible for everything inside
           that truck at that time.”

          Deputy Gutierrez’s testimony, indicating that possession is
           determined by showing that a person has “care, custody, and control
           of an illegal narcotic or object.”

          Deputy Gutierrez’s testimony that Appellant was “in possession” of
           the drugs for the following reason: “It was his truck. Well, he said it
           was —the truck is registered in his father’s name, but he was driving
           the truck.”

          With respect to what constitutes “possession, the following testimony
           of Deputy Davis: “Possession—you don’t have to literally be holding
           something to be in possession of it. If you’re driving a vehicle and
           you’re stopped and they find narcotics in your trunk where you can’t


                                       11
             even access it, you’re in possession of it because you’re in care,
             custody, and control of that vehicle.”

      Even if we presume that Appellant’s counsel was deficient because she did

not object to the above testimony, Appellant again has not satisfied the second

Strickland prong.    More precisely, Appellant has not shown that there is a

reasonable probability that the result of the proceeding would have been different

had counsel successfully challenged the complained-of testimony.

      Appellant asserts that the complained-of testimony left “the jury with an

improper definition of possession of a controlled substance and an improper

opinion of Appellant’s guilt . . . .” Appellant further asserts that the testimony

incorrectly led the jury to believe that Appellant could be found guilty by showing

only that he possessed the drugs when the law requires that there also be a showing

of knowledge or intent with regard to the possession. See HEALTH & SAFETY

§ 481.115(b). We note, however, that the charge instructed the jury that “[a]

person commits the offense of possession of a controlled substance if the person

knowingly or intentionally possesses a controlled substance.” Thus, the jury was

informed that, to find Appellant guilty, the evidence had to show that he knowingly

or intentionally possessed the methamphetamines. The charge also provided the

jury with the statutory definition of “possession.” See PENAL § 1.07(a)(39). The

charge further instructed the jury on the burden of proof, providing,




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      The State must prove every element of the offense charged beyond a
      reasonable doubt. The burden of proof throughout the trial is always
      on the State. The defendant does not have to prove anything. If the
      State proves every element of the offense beyond a reasonable doubt,
      then you must find the defendant guilty. If the State does not prove
      every element of the offense beyond a reasonable doubt, then you
      must find the defendant not guilty.

      Given the record, we conclude Appellant has not shown that there is a

reasonable probability that but for his counsel’s alleged deficient performance in

failing to object on the grounds that the testimony was a comment on the weight of

the evidence or constituted an improper legal opinion, the outcome of the

proceeding would have been different. See Andrews, 159 S.W.3d at 102. Thus,

we hold that Appellant has failed to satisfy the second Strickland prong with regard

to this complaint. See Cox, 389 S.W.3d at 819.

                                   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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