Ragland v. State, No. 03-07-00412-CR (Tex. App. 10/3/2008)
| Decision Date | 03 October 2008 |
| Docket Number | No. 03-07-00412-CR.,03-07-00412-CR. |
| Parties | BARCLAY RAGLAND, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Hays County, 22nd Judicial District, No. CR-06-771, Honorable William E. Bender, Judge Presiding.
Affirmed.
Before Justices PATTERSON, PURYEAR and HENSON.
Following a trial on a three-count indictment, a jury found appellant Barclay Ragland guilty of possessing more than four grams of methamphetamine with intent to deliver, possessing more than four ounces of marihuana, and possessing less than one gram of tetrahydrocannabinol. See Tex. Health & Safety Code Ann. §§ 481.112(a), (d), .116(a), (b), .121(a), (b)(3) (West 2003). The jury assessed punishment at forty-seven years in prison for the methamphetamine offense and at two years in state jail for the other offenses, and the trial court rendered judgments of conviction accordingly. In two points of error, appellant contends that his trial counsel was ineffective and that the trial court erred by admitting certain photographic exhibits during the punishment phase. We overrule these contentions and affirm the judgments of conviction.
On September 5, 2006, police officers assigned to the Hays County Narcotics Task Force executed a warrant to search the premises at 1121 Blevin Street in San Marcos and arrest appellant. Detective Laray Taylor, the officer in charge and the State's primary witness, testified that appellant's elderly father and three women were in the residence when the officers entered, but appellant was not there. He was arrested six months later in Blanco County. Booking records show that appellant was carrying a Louisiana driver's license but gave as his address 1121 Blevin Street in San Marcos.
During the residence search, officers found and seized 9.8 grams of methamphetamine, 125 grams (4.4 ounces) of marihuana, . 3 grams of tetrahydrocannabinol, a digital scale with marihuana residue on it, several glass pipes of the sort used to smoke methamphetamine or cocaine, a number of small plastic bags (some of which had unidentified residue in them), $4,000 in cash, and a bill from the Central Texas Medical Center addressed to appellant at the Blevin Street address. Officers also saw but did not seize items of men's and women's clothing. All of these items were found in the den and one bedroom of the house, which Taylor testified were occupied by appellant. According to Taylor, the other rooms of the house were occupied by appellant's father. Appellant does not challenge the sufficiency of the evidence.
In point of error one, appellant urges that his trial counsel rendered ineffective assistance. To prevail on this claim, appellant must show that his counsel made such serious errors that she was not functioning effectively as counsel and that these errors prejudiced his defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984);Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
With regard to the first prong of Strickland, it is the appellant's burden to prove by a preponderance of the evidence that trial counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Judicial scrutiny of counsel's performance must be highly deferential, and every effort must be made to avoid the distortions of hindsight. Robertson, 187 S.W.3d at 483. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Appellant's burden is made more difficult because no motion for new trial was filed, and there is no record focused on the conduct of counsel. See Jackson, 877 S.W.2d at 772 (Baird, J., concurring). The presumption of reasonable professional judgment can be overcome only if counsel's conduct was of a type that no reasonably competent attorney would have engaged in for any reason. Mata v. State, 226 S.W.3d 425, 428-29 (Tex. Crim. App. 2007).
Appellant contends that his attorney was ineffective in three respects during jury selection and the guilt/innocence phase of the trial. First, appellant complains that defense counsel failed to convey to the jury "any meaningful understanding of [the] State's burden of proof." Next, appellant asserts that his attorney failed to properly object to hearsay testimony used by the State to link him to the contraband. Finally, appellant complains that his lawyer did not object to irrelevant testimony regarding the dangers of methamphetamine production.
Appellant also contends that his lawyer was ineffective during the punishment stage of the trial. He complains that his attorney failed to object to hearsay testimony regarding the medical bill found during the search. He also urges that counsel failed to properly object to testimony and other evidence purporting to describe the consequences of methamphetamine abuse. Lastly, he asserts that counsel's closing argument at this stage misled the jury regarding the amount of methamphetamine he was found guilty of possessing.
Because appellant was not present when the search warrant was executed and the contraband was seized, it was necessary for the State to prove circumstantially his knowing possession of the drugs. Appellant argues that given the nature of the evidence against him, defense counsel was ineffective for having failed to convey to the jury a meaningful appreciation for the State's burden to prove his guilt beyond a reasonable doubt. Appellant correctly notes that counsel did not mention the State's burden of proof during jury selection. In fact, counsel did not mention proof beyond a reasonable doubt until her closing argument at the guilt/innocence stage. Appellant contends that counsel's argument was both too little and too late to benefit him.
Defense counsel began and ended the guilt/innocence stage of the trial by emphasizing that the State had no direct evidence linking appellant to the contraband. During her opening statement, counsel told the jury:
The State has a heavy burden to connect the defendant in this case, Mr. Ragland, to the drugs that have been found. And the evidence will show that there is no connection.
The prosecutor just spoke to you about inferences. You want to see some evidence connecting Mr. Ragland to those drugs. You're not going to get that opportunity, and I'm going to ask you to return a verdict of not guilty.
As appellant points out, defense counsel first mentioned reasonable doubt in her closing argument, when she told the jurors:
Beyond a reasonable doubt. It doesn't mean probably, it doesn't mean more than likely, it means something much more than that; it means more than a hunch, more than an assumption. The part [heart?] of the State's case is this knowing possession and that's where they have their problem. Knowing possession, let's make it simple, it really just means a connection from the drugs to Barclay Ragland.
The question is: Did the State present evidence beyond a reasonable doubt of that connection?
Counsel then discussed the various circumstances relied on by the State to link appellant to the contraband, offered alternative explanations for those circumstances, and suggested that the State was asking the jury to merely assume appellant's guilt. Counsel also reminded the jurors that Taylor had testified, during cross-examination, that the police had been watching the residence at 1121 Blevin Street for one month before executing the search warrant. She then pointed out that Taylor never testified that he had seen appellant at the residence.
The emphasis to place on the concept of proof beyond a reasonable doubt was a matter of trial strategy. On this record, appellant has not demonstrated that counsel's decisions in this regard are evidence of ineffective assistance.
During his testimony at the guilt/innocence stage, Taylor was asked by the prosecutor to explain why he believed that appellant knowingly possessed the drugs found at 1121 Blevin even though appellant was not present when the warrant was executed. Taylor responded by citing several facts, among them that Appellant asserts that defense counsel should have objected to this testimony as hearsay.
Defense counsel cross-examined Taylor about this "residence check." Taylor explained to counsel that Asked by counsel, "So that could just be a mailing address for bills" and to answer "yes" or "no," Taylor replied, "I believe it's a residence, ma'am." Taylor also acknowledged during cross-examination that the database showed appellant's deceased mother as the primary resident at 1121 Blevin and that he did not know if the database listed appellant's father. The officer could not say how up-to-date the database was.
We must assume that it was counsel's considered decision to forego a hearsay objection to...
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