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NOE RAMON REYES

THE STATE OF TEXAS

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Before Chief Justice Seerden and Justices Dorsey and Kennedy⁽¹⁾

Opinion

Appellant was convicted by the trial court of possession of cocaine in an amount of 400 grams or more. At the hearing on punishment, the state introduced certified copies of a prior conviction in federal court and a prior conviction in state court, each for possession of marijuana. The trial court sentenced appellant to imprisonment for life.

Appellant was driving a truck when he was stopped by a state trooper who was assigned to the License and Weight Division of the Texas Department of Public Safety (DPS) and deals with motor vehicle inspections. The trooper requested and received permission to search the truck.

The truck was taken to a DPS compound where a canine unit⁽²⁾ was present. The dog reacted to a portion of the truck on the passenger side near the firewall and a further search discovered a quantity of marijuana. Appellant pleaded guilty to a state jail felony for possession of the marijuana and was assessed punishment at confinement for two years.

Almost two months later, during which time the truck remained in a secure enclosure at the DPS headquarters in Victoria, the trooper, still suspicious that he had not found all of the unlawful substances in the truck, began a further and much more elaborate search of the truck. This search turned up five pounds of cocaine and more marijuana. The cocaine formed the basis for a subsequent indictment which resulted in this conviction. Appellant denied knowledge of the cocaine and, in fact, the record shows that he had purchased the truck from a man and prior to this man's purchase, it had been purchased at a drug forfeiture auction.

Appellant's brief presents thirteen issues. The first five allege factually (number one) and legally (numbers two through five) insufficient evidence to convict. Issue number six alleges error in denying appellant's motion for new trial which is based upon ineffective assistance of counsel. The last seven issues argue ineffectiveness of counsel, the arguments for which are intertwined with that for issue number six.

We first address the sufficiency of evidence issues. To determine whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict and ask 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, 318, 319 (1979); Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998). In a factual sufficiency review, we examine all of the evidence impartially and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

Issue one challenges the factual sufficiency of the evidence to convict appellant. Issues two through five read as follows:

2. Legally there is insufficient evidence to support conviction under the due process clause of the fourteenth amendment to the U. S. Constitution.

3. Under Texas Penal Code § 6.01(a) and (b), acquittal must follow since appellant was an "involuntary possession" of the secreted cocaine.

4. As to the secreted cocaine, legally there are inadequate, affirmative links to demonstrate appellant acted knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he was aware of the nature of his conduct or that the circumstances exist.

5. As to the secreted cocaine, legally there are inadequate, affirmative links to demonstrate appellant "possessed by having actual care, control or management" 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 exist.

The trial judge heard evidence that appellant was the driver and sole occupant of the truck. Appellant admitted to knowledge of the marijuana found in the truck. The trial judge heard evidence that, following the seizure, the truck had been stored in a DPS compound staffed around the clock every day of the year, surrounded by a high fence, with surveillance cameras. He heard further evidence that the noise and time consumed by the authorities to break into, and discover, the concealed cocaine would, certainly, have alerted someone if done by a party who had sneaked into the compound without authority. The court heard evidence that the cocaine was found to be packaged in Saran Wrap and was similar to the packaging of the marijuana which appellant admitted was his.

The court could easily have found that the cocaine was intact when appellant had possession of the truck. In spite of appellant's denial of knowledge of the presence of the cocaine, the trial court, being the fact finder in this case, could have determined from all the surrounding circumstances that appellant knew about the cocaine and, thus, possessed it. Also as the court said in Menchaca v. State, 901 S.W.2d 640, 652 (Tex. App. ­ El Paso 1995, pet ref'd):

The jury was well aware that the cargo with which Appellant had been entrusted was valuable. It was a rational inference that Appellant would not have been entrusted in taking the valuable cargo across an international border⁽³⁾ if he were a mere innocent, ignorant of all the details surrounding his responsibility and the importance of the cargo in his care.

We hold that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We also find that the judgment of the trial court was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We deny the relief sought in issues one through five.

Issue six alleges error in the court's denying his motion for new trial. From the structure of appellant's brief, he appears to have incorporated all of his allegations of ineffective assistance of counsel into his motion for new trial.⁽⁴⁾

Appellant's remaining seven issues allege ineffective assistance of counsel. To judge ineffective assistance we adhere to the two-prong Strickland test.⁽⁵⁾

Under this test, in order to obtain a reversal, appellant must show: (1) that his counsel's representation was deficient; and (2) that the deficient performance was so serious that it prejudiced his defense. This means appellant must prove by a preponderance of the evidence that counsel's presentation fell below the standard of prevailing professional norms, and that there is a reasonable probability that but for counsel's deficiency the result of the trial would have been different. McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996).

Issues seven, eight, and nine complain of trial counsel's failure to object, and failure to discuss the possible objection with his client, to the evidence obtained due to the seizure of his truck in violation of the fourth and fourteenth amendments to the U. S. Constitution. There is no proof by appellant that such an objection was valid and from the evidence it does not appear to be so.

Issue ten alleges ineffective assistance in the waiver of a jury in the guilt-innocence phase of the trial because appellant is hispanic and forty percent of the population of Victoria County are hispanic. First of all, there is no evidence that these population figures are correct. And again there is no proof that such a decision prejudiced appellant in view of all of the evidence.

Issues eleven and twelve allege ineffective assistance in the "not guilty" phase of the trial (eleven) and the penalty phase (twelve). No details are given in the brief as to why counsel was ineffective in either phase. References are made to volumes of the record in each issue but no reference is made to a page. We can only guess what appellant is complaining of and this we decline to do. As an appellate court, it is not our task to pore through the record in an attempt to verify an appellant's claims, nor is it our task to speculate as to the nature of an appellant's legal theory. Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995); Tex. R. App. P. 38.1(h).

Issue thirteen states that trial counsel rendered ineffective assistance by failing to present appellant's father as a witness even though trial counsel said that he wanted the father to be a witness. We are not sure why this is relevant to an ineffective assistance issue. From reading the brief, however, the brief refers us to pages in the record to support this issue. We are unable to find anything in the record to suggest that the foregoing occurred, or if it did, it supports a charge of ineffective assistance of counsel.

We find no error in any of the issues propounded by appellant and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 12th day of April, 2001.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. A dog and a dog handler used to sniff for the presence of drugs.

3. There is no evidence in this case that the contraband was taken across an international border, however, the logic of the statement still holds true.

4. Appellate counsel, who filed the motion for new trial, was not appellant's attorney at trial.

5. Strickland v. Washington, 466 U.S. 686 (104 S.Ct. 2064) (1984).