Opinion filed Au gust 6, 2009



### In The 

# Eleven th Court of Appeals

____________ 

### No. 1 1- 07 -0 03 41 -CR

____ ____ __ LARRY JOSEP H WILKIN S, Ap pellant

V. STA TE OF TEX AS , A ppellee

On App eal from the 35th Distric t Court Brown County, Texas Trial Court Cause No. CR 18056

M E M O R

A N D U M O P I N I O N The jury convicted L arr

y J oseph Wilki n s o f poss ession of a c ontrolled substance , and the tr ia l c ourt a sse sse d h is p un ish me nt at si x mont hs c on fi ne me nt. We a ff

ir m. I

. Ba c k gr ou nd Fa c ts B ro wnwo od

Pol ic e Of

fi c e r Joe Aa

ro n Ta y lor wa s on patr ol wh e n he no tic e d a ve hic le wi th an expired insp ec tion sti cker . He c onducted a traff ic stop and dete rmined that the ve hicle had a fictitious inspection sticker. The dr iver wa s handcuf fed a nd place d in Office r Tay lor’s vehic le. Wil kins was in the front se at. Off i ce r Taylor asked him to identify himself. He initially

said that his na me was Roge r Allen Wil kins, but he later g ave O ffice r Tay lor his corre ct name. O ffice r Tay lor discovere d that Wil kins had three outstanding w arr an t s
. Wil kins was handc uffe d and wa s place d under a rre st. Office r Tay

lor sear ched Wilkins and checke d his pockets but not his shoes or the inside2

of hi s clothing. N o contra band or w eapons w ere found. Off icer Art Shannon ar

rived a s backup, a

nd Wilk ins wa s p la c e d in

the ba c k of Of

fi c e r S ha nn on ’s ve hic le . O ff

ic e r T ay lor

c omp le te d h is inv e sti g a tio n an d the n move d Wilkin s to his own ve hic le

. Of fi c e r Sha nn on no tic e d a p la sti c ba g g ie with a white powde ry

substance on the floor next t o the par tition between the f

ront seat a nd backse at in his car. The substance in the ba g g ie was te sted. I t weig hed .49 gra m s and contained methamphetamine. I I

. Issues Wil kins challeng es his conviction with two issues, contending that his t ri al counse l was

c on sti tut ion a lly

ine ff e c tiv e and

tha t th e e vid e nc e wa s le g a lly or fa c tua lly ins uf fi c ie nt. I I I

. Ineffec tive Assistance To deter mine if trial counse l rende red ine ffe ctive assist a n c e , w e must first deter

mine whether Wilk ins ha s sh ow n th a t c ouns e l’ s r e pr e se ntatio n f e ll b e low an o bje c tiv e sta

nd ard of re a so na ble ne ss and, if so, then de termine whe ther ther e is a reasonable probability that the re sult would have bee n differ ent but f

or counsel’s e rror s. Strickland v. W ashington , 4 6 6 U. S

. 6 6 8 (1 9 8 4 ). W e m u s ti n d u l ge a strongpresumption that counsel’s c onduct fe ll within t he wide r ang e of r easona ble pro fe ssional assistance , and Wilkins must overcome the presumption that, under the circ umst an ce s , the challeng ed action might be c onsidered sound tria l strateg y
. Sta ffo rd v . S tat e , 813 S.W .2d 503, 508- 09 (Tex. Crim. App. 1991). An alleg ation of ineff ective a ssistance must be firmly founded in the

rec ord, and the re co rd m u st affirmatively demonstrate the alleg ed inef fec tiveness. Thompson v. Sta te , 9 S.W .3d 808, 814 (Tex. Crim. App. 1999). Under normal circ umstances, the rec ord on direc t appea l will not be sufficient t o show that counsel’s repre sentation was so defic ient and so l acking

a s to ov e rc ome the pr e su mpt ion tha t c ouns e l’ s r e pr e se ntatio n w a s r e a so na ble and pr ofes si on al. Bo ne v . S tat e , 77 S.W .3d 828, 833 (Tex. Crim. App. 2002). Wilk ins argue s th a t his tri a l couns e l wa s con sti tut ion a lly ine ff e c tiv e be c a

us e he did no t c a ll Wil kins’s stepdaug hter a s a witness. The r ecor d does not indicate w hat testimony W i l k ins’s stepdaug hter would have provide d or why counsel did not c all her. Wit hout this, we cannot c onclude that c ouns e l’ s d e c isi on

wa s in a pp ro pr ia te or

that it re su lte d in

ha rm
. Wil kins also complains beca use counse l conducted a

cursor y voir dire. W i l k i ns does not identify any issue that counsel should, but did not, address duringvoir dire. Counsel told the pane l3

that, beca use the S tate had c overe d most of the issues, he would not be long , but he did cover two

e xamp le s o f c ir c ums tanti a l e vid e nc e le a din g to t he wr on g c on c lus ion , d e fe re nc e to p oli c e of fi c e rs , the ri g ht to r e ma in s ile nt, and pe rc e pti on s o f d

ru g c a se s. We c ann ot c on c lud e that c ouns e l sh ou ld have c overe d additional are as or that Wilkins was harmed by the fa ilure to do so. Finally , Wil kins c ontends that counsel did not strike two jurors who a dmitted being f riends with law enf

orce ment witnesses. One of the ve niremembe rs that W i l k i n s identifies, Venire man No.14, was in fac t struck by his counsel. The se cond venir emember , Venire man No. 23, indicate d that he kn e w the of

fi c e rs bu t st a te d th a t th is c re a te d n o prob lem and tha t he c ou ld l ist e n to the ir te sti mony
. Th e re c or d do e s no t ind ic a te wh y c ouns e l e xer c ise d his str ike s a s he d id . Because B ro wnwo od is a sma ll co mmunit y , we c ann ot co nc lud e that c ouns e l ha d n o c ho ic e bu t to str ike thi s
ve nir e me mbe r m e re ly

be c a us e he kn e w the of

fi c e rs . F or

e xamp le , co un se l cou ld have re a so na bly deter mined that other ve niremembe rs wer e more objectionable. I ssue Two is over ruled. I V. Sufficiency of the E

videnc e Wil kins a

rg ues that the evidenc e is insuff icient beca

use there was onl y

circ umstantial evidenc e conne cting him to the drug s and bec ause much of the e vidence was inconsistent with the State’s alleg ation. We will apply the following well-re cog nized stand ar d s o f re view to Wilki ns’s sufficie ncy

challeng es. To dete rmine if the evidence is leg ally sufficie nt, we must revie w all of the evidenc e in the lig ht most favorable to the verdic t a nd deter mine whether any rational trier of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt. Jack son v. Vi rg ini a , 4 43 U. S. 3 07 (1 97 9) ; J ac k so n v . S tat e , 17 S.W .3d 664 (Tex. Crim. App. 2000). To deter mine if the evide nce is fac tually sufficie nt, we must review all of the e vidence in a neutra l light

and de te rm ine wh e ther t he e vid e nc e su pp or tin g the ve rd ic t is so we a k th a t th e ve rd ic t is c le a rl y wrong a nd manifestly

unjust or whether

the ver dict is ag ainst the g reat weig ht and pre pondera nce of the c onflicting evidenc e. W ats on v . S tat e , 204 S.W .3d 404, 414-15 (Te x . Crim. App. 2006). Wil kins draws our attention to the fact that he was sea rche d b ef o re being place d in the

v e h i c l e , t h a th e w a s h an d c u f f e d an d w e ar i n g a t an k t o p , an d t h a t n o o n e s aw h i m a c t i n g s u s p i c i o u s l y. Offic er Shannon te stified that the bag g ie wa s n o t in his car be fore Wil kins was detaine d but was the re wh e n Wil kin s wa s move d. Of fi c e r S ha nn on a lw ay s in sp e c ts h is v e hic le a t th e sta rt of his sh if t. This includes looking in the backse at. The ba ckseat are a is ea sy to inspect bec ause the seat is made4

of h ar d p la s ti c r a th e r th an c u s h io n s an d th e r e ar e n o f lo o r mats

. O f

f ic e r T ay lo r ’ s tr a f

f ic s top w as Of fi c e r S ha nn on ’s fir st c a ll that da

y . Wil kin s w a s a lon e in t he ve hic le fo r f

ive to t e n mi nu te s. Be cause Offic er Shannon w as assisting Office r Tay lor, he did not observe Wil kins the entire time. Offic er Ta

y lor che cked the inside of Wil k i n s ’s pocke ts before placinghim in Officer Shannon’s vehicle, but he did not searc h Wil kins’s shoes or the inside of his c lothes. Officer Tay lor and Of fi c e r S ha nn on bo th t e sti fi e d th a t th e y

have se e n p e op le we ari ngha nd c uf fs re a c h in to t

he ir c lot he s. Of fi c e r T ay lor

te sti fi e d th a t he ha s se e n p e op le re triev e it e ms f ro m so me “ re mark a

ble loc a tio ns ” while wea

ring handcuf

fs. Off icer Shannon has seen people take off c lothes and has a lso seen them

us e c e ll p ho ne s. The e vid ence is leg ally

and fa ctually

sufficie nt. The jury

could ac cept Of

fice r Shannon’s te sti mony that th e re wa s noth ing in his ba c ks e a t bef or e Wilk ins wa s p la c e d th e re and that a ba g g ie with methamphetamine was there when he was moved. The jury could also re asonably

conclude that thi s b a g g ie wa s o n Wil kin s’ s p e rs on , b ut n ot i n a po c ke t, a nd that Wilk ins re mov e d it and le ft it i n the floorboa

rd while Of

fice r Tay lor finished his investigation. I ssue One is ove rruled. V. Holding The judg ment of the trial c ourt is affir med.

RI CK STRANGE

JUSTI CE
Aug ust 6, 2009 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.