Daniel Louis Beal v. the State of Texas

• Decision Date: 27 July 2000
• Citation: 35 S.W.3d 677
• Parties: <!--35 S.W.3d 677 (Tex.App.-Houston 2000) DANIEL LOUIS BEAL, Appellant V. THE STATE OF TEXAS, Appellee NO. 01-99-00140-CR In The Court of Appeals For the First District of Texas
• Court: Texas Court of Appeals

Page 677

35 S.W.3d 677 (Tex.App.-Houston [1st Dist.] 2000)

DANIEL LOUIS BEAL, Appellant

V.

THE STATE OF TEXAS, Appellee

NO. 01-99-00140-CR

In The Court of Appeals For the First District of Texas

July 27, 2000

Order Denying Rehearing En Banc January 25, 2001.

On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 787593

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices O'Connor, Nuchia, and Duggan.^*

OPINION

Sam Nuchia, Justice

A jury found appellant guilty of possession of a controlled substance with the intent to deliver and made a finding that appellant used a deadly weapon. The Court found an enhancement paragraph based on an aggravated robbery true and sentenced appellant to 40 years confinement. We affirm.

BACKGROUND

John Barnes had known appellant for several years. Barnes also knew that appellant sold drugs. In 1998, Barnes was arrested and convicted for possession of a controlled substance. At the time of appellant's trial, Barnes had not been sentenced. Although he had no formal agreement with either State or Federal prosecutors, he was hoping to help himself by becoming an informant for the Drug Enforcement Agency (DEA) in May of 1998. To that end, he called appellant on June 3, 1998 to buy two ounces of methamphetamine. Calling appellant was his idea, not the DEA's. Before his arrest, Barnes had not been an informant, and his case agent, Trent Broussard, did not begin an investigation against appellant until Barnes informed him that appellant was a drug dealer.

At appellant's trial, Barnes testified that he called appellant and told him he wanted to buy two ounces of methamphetamine. The next day, Barnes recorded a telephone call with appellant in which appellant told Barnes he had two ounces of methamphetamine that he could sell Barnes for $2,400. The sale did not take place, but Barnes continued to have phone conversations with appellant and met with him a few weeks later to set up a larger drug deal.

Barnes told appellant he had an uncle, Mr. B., who wanted to buy some methamphetamine. Mr. B. was actually a confidential informant for the DEA. The next day, Barnes picked up Mr. B., who then recorded a phone call between himself and appellant. During that call, appellant showed familiarity with drug slang, and indicated he wanted additional money for the sale of nine ounces of methamphetamine. Mr. B. also recorded another phone call to appellant discussing the upcoming drug deal.

A short time later, appellant and Christopher Schimming met Barnes and Mr. B. in the parking lot to finish the deal. DEA agents monitored the transaction and arrested appellant after he delivered 156 grams of methamphetamine.

Schimming, a young teenager, testified that Anthony Contreras offered him one hundred dollars to go to the drug deal. Shimming said he went with appellant to "watch out for the drugs." Appellant got a car from Contreras. The drugs were in the console, and a handgun was under the passenger seat. After appellant and Schimming got into the car to drive to the drug deal, Schimming took the gun from underneath the seat and put it under his leg. Schimming kept the gun under his leg while the drug deal was taking place, but pushed it into the crevice between the passenger side door and seat when the police arrived. Schimming testified he thought appellant should have known he had a gun because of his small size, his role as "protection," and Contreras's comments to him and appellant. However, Shimming testified that he did not know if appellant knew he had a gun.

Appellant testified he possessed methamphetamine with the intent to deliver. Appellant also testified he was convicted of the aggravated robbery, first claiming it was on appeal, but eventually admitting the conviction had been affirmed. Appellant testified that Barnes called him repeatedly trying to get him to sell drugs. Appellant admitted telling Barnes he would try to set up a deal for him, but claimed he did not actually intend to sell drugs until he lost his job. Appellant said he set up the deal with Contreras, a drug dealer he knew from the neighborhood. Appellant knew Schimming was going along to look out for the drugs, but claimed he did not know Schimming had a gun. Appellant did not dispute the accuracy of any of the tape recordings, and he admitted it was his voice on the tapes.

After appellant was convicted and sentenced, he filed a motion for new trial claiming ineffective assistance of counsel. At the motion for new trial hearing, appellant's trial counsel, Peter Heckler, testified that he was retained to represent appellant when appellant was charged in federal court. The federal charges were dismissed, and state charges were filed. Heckler continued to represent appellant. Heckler appeared in court on behalf of appellant in July, August, September, and October. Heckler testified that he reviewed the DEA offense report and parts of the State's file, listened to the tape recordings, and discussed the case with appellant. Heckler also testified that he spoke with appellant at least 12 different times. Heckler testified his trial strategy was to put on a defense of entrapment. He said he had researched the defense of entrapment, was allowed to present evidence of entrapment at trial, and had prepared a proposed instruction on entrapment. Heckler testified he discussed the entrapment strategy with appellant before appellant testified; however, he said, "In my opinion, it wasn't sufficient."

Heckler testified that the State offered appellant a plea bargain of eight years that was good until November 3, 1998. Before the November 3, 1998 setting, appellant, while in custody, learned of "a plot against the trial court." Heckler testified that he and appellant hoped to use this information to get a better plea bargain. Instead of accepting the plea offer, Heckler set the case for trial. During the six weeks the case was set for trial, Heckler received notice of two of appellant's prior offenses.

Heckler testified that on December 9, 1998, recognizing he was not going to get a better deal than in the expired plea bargain, he requested the assistant district attorney to allow appellant to accept the original plea offer. The district attorney refused and offered 25 years. Heckler testified that he refused the offer and filed a motion for continuance, claiming he was not prepared for trial on December 14, 1998. The court denied his motion, and jury selection began that day.

The judge denied appellant's motion for new trial.

I. Ineffective Assistance of Counsel

In his first three points of error, appellant contends that his trial counsel was ineffective under the United States Constitution and the Texas Constitution, and that the court abused its discretion by denying the motion for new trial based on the ineffective assistance of counsel. Appellant cites 15 instances where he claims trial counsel's assistance was ineffective.

The standard of review for evaluating claims of ineffective assistance of counsel is the same under both the United States Constitution and the Texas Constitution. Appellant must show that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment, and (2) but for counsel's error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.).

It is the defendant's burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.

A. Instances of alleged ineffectiveness that were waived

Appellant alleges his trial counsel was ineffective when he (1) did not file a pretrial motion or request a hearing on the issue of entrapment as a matter of law; (2) did not move to quash the enhancement paragraph due to lack of finality; and (3) did not investigate the extraneous offense used at punishment. However, appellant makes no argument on these issues in his brief, does not cite any legal authority on these points, or mention them any further at all. Appellant has preserved nothing for review on these points of error. Tex. R. App. P. 38.1(h); Smith v. State, 683 S.W.2d 393, 410 (Tex. Crim. App. 1984) (holding where defendant cited no authority and presented no argument on the issue nothing was preserved for appellate review).

Appellant also presents nothing for review on the assertion that counsel did not preserve error for review by not making offers of proof following the trial court's limitation of cross and direct examination. Appellant cites no legal authority and does not point to where in the record he claims the judge limited counsel's examination. See Bell v. State, 620 S.W.2d 116, 126 (Tex. Crim. App. 1980) (holding not calling attention to any portion of the record from which to identify the action claimed of presents nothing for review); Thompson v. State, 915 S.W.2d 897, 906 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (holding not identifying cites to the record where counsel did not object preserves nothing for review on an ineffective assistance of counsel claim).

B. Instances of alleged ineffectiveness that could have been trial strategy

Appellant claims counsel was ineffective because he did not timely accept the State's plea bargain offer. The record of the motion for new trial hearing indicates, however, counsel's strategy was to get a better plea bargain offer than eight years by informing the court of the "security threat." See Delrio v. State, 840...