11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Daniel Omar Chavez

Appellant

Vs.                   No. 11-01-00071-CR B Appeal from Taylor County

State of Texas

Appellee

The jury convicted appellant of possession of methamphetamine^[1]; the trial court assessed his punishment at confinement for ten years.^[2]  Appellant argues in his second and third points of error that the evidence was legally and factually insufficient to support his conviction.  He argues in his first point of error that he received ineffective assistance of counsel because his trial counsel had an actual conflict of interest.  We affirm.

                                                              Standards of Review

Appellant raises the legal and factual sufficiency of the evidence in his second and third points.  Evidence is legally sufficient when, viewed in the light most favorable to the prosecution, it is sufficient to permit a rational trier of fact to find all the essential elements of the charged crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000).  Evidence is factually sufficient unless, when viewed without “the prism of most favorable to the prosecution,” the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust.  Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App. 1996).  The jury is the exclusive judge of the facts proven and may choose whether to believe any or all of a witness’s testimony.  TEX. CODE CRIM. PRO. ANN. art. 38.04 (Vernon 1979); Bowden v. State, 628 S.W.2d 782, 784 (Tex.Cr.App. 1982).

                                                                    The Evidence

On January 12, 2000, Abilene Police Officer Adam Lopez responded to a call from the Ramada Inn.  Employees at the motel smelled burning marihuana in the hallway.  Officer Lopez determined that the odor came from Room 142.  He knocked on the door and announced that he was a police officer.  Ronald Deleon answered the door and told Officer Lopez, in response to questioning, that the room was his.  The odor of burnt marihuana became stronger when the door opened.  Officer Lopez asked for permission to search the room, and Deleon signed a consent form.  Officer Lopez saw appellant, who was fully clothed, lying on one of the beds on top of the covers.  Officer Lopez opined that appellant was only pretending to sleep.

A search of the room revealed two burnt marihuana Ablunts@^[3] in an ashtray, an unsmoked Ablunt@ in a Swisher Sweet cigar box, a plastic Abaggie@ containing off-white powder, and another Abaggie@ with capsules in it.  All these items were located in plain view on the table between the beds.  Officer Lopez found nothing else in the room.  The white powder was later determined to contain 1.26 grams of methamphetamine.  Both appellant and Deleon denied ownership of the methamphetamine and marihuana.  While still in the motel room, appellant told Officer Lopez that the capsules were his AGold Rush pills to clean his system out.@  Two of the same type of capsules were found in the bag containing methamphetamine.

Deleon testified that the drugs were his and that appellant slept during the time that he was smoking the Ablunts.@  Deleon acknowledged that smoking marihuana cigars would create a great deal of smoke and odor.   He could not explain how appellant=s AGold Rush@ capsules got into the bag of methamphetamine while appellant was sleeping.  He testified that he had not claimed ownership of the drugs before trial because he did not want to be in trouble.  Deleon admitted that he told one officer that the Astuff@ was not his.

Appellant argues that the evidence shows nothing but the fact that he was in the same room as illegal drugs.  The evidence, however, is sufficient to allow a reasonable jury to infer from the presence of the AGold Rush@ capsules in the bag of methamphetamine that appellant intentionally or knowingly possessed the methamphetamine.  The jury could disbelieve Deleon=s testimony.  The verdict is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.  We overrule appellant=s second and third points of error.

                                                         Ineffective Assistance Claim

Appellant=s trial counsel apparently also represented Deleon on criminal charges arising from the same transaction.  Appellant argues in his first point of error that he received ineffective assistance of counsel in violation of his constitutional rights because an actual conflict of interest arose from his defense counsel=s representation of Deleon.  In order to establish a constitutional violation, a defendant must establish that an Aactual conflict of interest adversely affected his [trial counsel=s] performance@ in mounting a defense.  Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).  A presumption of harm arises under Cuyler if the defendant can show that his trial counsel actively represented conflicting interests and that the conflict had an adverse effect on his trial counsel=s performance.  Strickland v. Washington, 466 U.S. 668, 692 (1984); Ex parte Morrow, 952 S.W.2d 530, 538 (Tex.Cr.App. 1997).

Appellant argues that his trial counsel=s representation of Deleon created a conflict that prejudiced his defense because both men had an interest in disclaiming ownership of the drugs.  Appellant=s argument overlooks the fact that Deleon, after being admonished by the trial court and trial counsel, testified that the drugs were his and that appellant had no knowledge of them.  This was the only exculpatory evidence presented.  If a conflict did exist, it did not prejudice appellant=s defense.  Appellant has failed to demonstrate ineffective assistance of counsel under Cuyler.  We overrule his first point of error.

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

August 2, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.