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# •\>VOc QZourt ofAppeals ¥xittj Itstrtrt ai G^xas at Dallas JUDGMENT 

### FLORENCIO SOTO, Appellant No. 05-96-00966-CR V. 

### THE STATE OF TEXAS, Appellee Appeal from the 194th Judicial District 

### Court of DallasCounty, Texas. (Tr.Ct.No. F96-44041-KM). 

### Opinion delivered by Justice Moseley, Justices James and Wright participating. 

### Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 24, 1998.


### JlgHVIOSELEY JUSTICEAFFIRM and Opinion Filed July 24, 1998

In The 

## (jiaurt ofAppeals ¥xftfy Itstrtrt of(Eexas at lallas
No. 05-96-00966-CR FLORENCIO SOTO, Appellant
V. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F96-44041-KM
OPINION Before Justices James, Wright, and Moseley Opinion By Justice Moseley Florencio Soto appeals his conviction for possession of over four hundred grams of cocaine with intent to deliver. After thejury found appellant guilty, the trial court assessed 

### a thirty-five year sentence. In four points oferror, appellant contends (1) the trial court erred in admitting certain evidence; (2) the trial court erred by overruling appellant's objections to the prosecutor's closing argument; and (3) he received ineffective assistance

### of counsel at trial. We affirm the trial court'sjudgment.
FACTUAL BACKGROUND 

### A confidential informant, Syed Ahmed, working with the Dallas PoliceDepartment, arranged to purchase a kilo of cocaine on March 1, 1996. Officer Catherine De LaPaz 

### arranged police surveillance of the drug purchase. De LaPaz, driving an unmarked police car, parked nearthe liquorstore where the transactionwas to occur. She saw appellant and another person arrive in a red Nissan and park in front of the liquor store. Appellant was driving. Appellant got out ofthe car and entered the liquor store. He quickly returned 

### with something in his hand. Appellant went to a pickup truck parked near the liquor store and unlocked the passenger door. He returned to the Nissan, reached behind the driver's 

### seat, and pulled out a twelve-pack carton of Coca Cola. Carrying the Coca Cola carton, appellant went back to the pickup truck, placed the carton behind the passenger seat, and re-locked the door. Appellant returned to the Nissan, got back in the driver's seat, and 

### circled the parking lot. Finally, appellant stopped the Nissan near a pay telephone. Appellant got out of the car and stood by the pay telephone. The passenger moved to the driver's seat and parked the red Nissan in front of the pawnshop next door to the liquor

store. 

### Ahmed arrived and went into the liquor store. One or two minutes later, Ahmed returned to his car and moved it close to the pickup truck. Another man, later identified 

### as Steve Castellano, came out of the liquor store and went to the pickup truck, followed by

### appellant. Appellant unlocked the passenger door of the pickup truck, retrieved the Coca 

### Cola carton, and handed it to Castellano. Castellano took the carton and gotin Ahmed's vehicle on the passenger side. Ahmed saw two large ziplock bags containing a white material inside the Coca Cola carton. After he checked one of the bags to be certain that it contained cocaine, he gave De LaPaz a prearranged signal. The police moved in and arrested everyone at the scene. During a pat down search of appellant pursuant to his arrest, the police found a magazine clip in appellant's left front pocket, loaded with ten live 

### rounds of nine millimeter ammunition. Police also found an unloaded handgun on the front passenger seat of the red Nissan. The magazine clip found on appellant fit the handgun
found in the Nissan. ADMISSION OF GUN In his first pointoferror, appellantcontends the trial courterred inadmitting the gun 

### found in hiscarinto evidence. Specifically, appellant asserts the gun was irrelevant because there is no evidence he used it during the drug transaction. Thus, appellant argues his possession ofthe gun is merely an unrelated extraneous offense and any probative value was substantially outweighed by the danger ofunfair prejudice. We disagree. The trial court has broad discretion to admit or exclude evidence.1 This Court will

See Montgomery v. State. 810 S.W.2d 372,389 (Tex. Crim. App. 1991) (op. onreh'g); Mcintosh v. State, 855 S.W.2d 753. 769 (Tex. App.-Dallas 1993, pet. rcfd) (op. on reh'g).

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### reverse a trial court's evidentiary ruling only if an abuse of discretion is shown.2 An abuse 

### of discretion occurs when the trial court's ruling is outside the zone of reasonable disagreement.' 

### Under the Texas Rules of Criminal Evidence, evidence of "othercrimes, wrongs, or acts is not admissible to prove the character ofa person in order to show that he acted in 

### conformitytherewith."4 Such evidence is admissible, however, forotherpurposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, 

### identify, or absence of mistake or accident/ Thus, such evidence is admissible when it "has relevance apart from character conformity; when it tends to establish some elemental fact, such as identity or intent; when it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or when it rebuts a 

### defensive theory by showing, e.g., absence of mistake or accident.'"' Extraneous offense evidence is admissible if it is relevant, that is, ifthe evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more
2Montgomery, 810S.W.2d at392.

Id. at 391. Tkx. R. Crim. Evio. 404(b) (former rules). This case was tried and briefed before March 1, 1998, when the Texas Rules of Evidence took effect. In its February 25, 1998order of final approval, the court of criminal appeals ordered that the amended rules apply to all proceedingson or after March 1,1998. Therefore, we apply the former rules, and ail references are to the former rules.5Id.; Bishop v. State. 869S.W.2d342, 345-46 (Tex. Crim. App. 1993).

"Montgomery, 810S.W.2d at387-88.

### probable or less probable than it would be without the evidence,7 and if its probative value is not substantially outweighed by the danger of unfair prejudice.8 We conclude the trial court did not abuse its discretion in admitting the gun into evidence. To prove appellant possessed the cocaine with intent to deliver, the State had to show appellant exercised actual care, custody, control, or management overthe contraband 

### and that the accused knew the matter possessed was contraband.1' Appellant contended during trial that he could not see in the Coca Cola carton and therefore did not know it 

### contained cocaine. Evidence that appellanthad a gun (and ammunition) to protecthimself
was relevant to the issue ofwhether he knew he was carrying valuable contraband, i.e., the 

### cocaine.10 We conclude the trial court did not abuse its discretion in determining that evidence ofappellant's possession ofa gun was relevant. We next considerwhether the trial court abused its discretion in concluding that the 

### probative value of the evidence was not substantially outweighed by the danger ofunfair prejudice. In conducting this balancing test, the trial court should first consider how 

### compellingly the evidence serves to make more or less probable a fact of consequence."
7Tex. R. Crim. Evid.401. 8Tex. R. Crim. Evid. 403; seeJannise v. State, 789 S.W.2d 623, 627 (Tex. App.--Beaumont 1990, pet. ref'd).

"Guiton v. State. 742S.W.2d5.8(Tex. Crim. App. 1987); Porterv. State, 873S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). 10SeeTex. R. Crim. Evid. 404(b); Martin v. State. 823 S.W.2d 726. 729 (Tex. App.-Waco 1992, pet. ref'd).

" SeeMontgomery, 810S.W.2d at389-90.

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### This inquiryinvolves an analysis of the similarity of the extraneous offense to the charged offense and the relative strength of the evidence showing appellant committed the extraneous offense.12 Next, the trial court should weigh the potential of the extraneous offense evidence to impress the jury in some "irrational but nevertheless indelible way."13 Finally, the court must examine the proponent's need for the evidence of the extraneous 

### offense.14 The proponent's need is based on (1) whether there is other evidence to establish the necessary fact, (2) if so, how strong that evidence is, and (3) whether the fact 

### relates to a disputed issue.15 Generally, rule 403 favors admission of relevant evidence.16 As discussed above, evidence that appellant possessed a gun was highly probative 

### of whether appellant knew the Coca Cola carton contained cocaine. We conclude that evidence appellant merely possessed the gun did not have the potential to impress the jury in an irrational but nevertheless indelible way. Moreover, the State needed the evidence 

### to rebut appellant's assertion that he did not know the Coca Cola carton contained cocaine. Thus, the extraneous offense evidence related to a material disputed fact issue in the case. We conclude the trial court did not abuse its discretion in concluding the probative value of

2Id. at 390.

See id.
See id.
See id.
Id. at 389.

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### the extraneous offense evidence was not substantially outweighed by the danger ofunfair prejudice. We overrule appellant's first point of error. JURY ARGUMENT 

### In his second and third points oferror, appellant argues that the trial court erred in overruling his objections to the prosecutor's statements during closing arguments. Proper jury argument must fall within one of the following categories: (1) summation of the 

### evidence; (2) reasonable deductions from the evidence; (3) response or answer to opposing 

### counsel's argument; and (4) pleas for lawenforcement.17 In his second point oferror, appellantcontends the trial courterredin overrulinghis objection to the prosecutor's following argument: Butwhat I would submit to you folks is that as in the course of your deliberations when you begin to talk about the issue of 

### guilt in this case, you first start with the question, and you are required to startwith the question of what is in the indictment; and that is, that the defendant is charged with possession with intent to deliver. Before you start to debate or even question 

### the idea of a straight possession, merely possession, you must agree that the defendant is not guilty of the offense of possession with intent to deliver; that is, you must believe that he did not have that intent before you start to discuss the issue ofstraight possession. 

### Appellant objected, arguing that "[tjhere is no requirement in the jury charge that 

### they acquit my client first ofpossessionwithintentto deliverbefore they can decidewhether

17Borjanv. State,787S.W.2d53,55(Tex. Crim. App. 1990);Alejandrov.State,493S.W.2d230, 231 (Tex. Crim. App. 1973).

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### or not he is guilty beyond a reasonable doubt of possession." The trial court did not 

### expressly rule on this objection, but instructed the jury to follow the charge. 

### In his brief, appellant concedes that the language of the jury charge supports the prosecutor's argument. The application paragraph in the charge instructed the jury that if it did not find the elements of possession of more than four hundred grams ofcocaine with intent to deliver, it should "acquit [appellant] of the offense of possession with intent to 

### deliver cocaine and proceed to consider whether [appellant] is guilty of the lesser included offense" ofpossession ofcocaine. 

### It is not error for the State to quote or paraphrase the jury charge.18 Conversely, argument that contains a statement of law contrary to the court's charge is error.1' Assuming, without deciding, that appellant properly preserved his complaint, the State's argument was not contrary to the jury charge and was therefore proper. Accordingly, the 

### trial court did not err in overruling appellant's objection. We overrule appellant's second point oferror. In his third point oferror, appellant contends the trial court erred by overruling his 

### objection to the State's closingargument in which the State characterized appellant as a "supplier" of drugs. The State is allowed wide latitude in drawing inferences from the

18Whiting v. State. 797 S.W.2d45, 48 (Tex. Crim. App. 1990).

'"Id., seealsoBranson v. State. 825 S.W.2d 162, 167 (Tex. App.-Dallas 1992, no pet.).

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### evidence so long as such inferences are reasonable and offered in good faith.20 However, reference to facts that are neither in evidence nor inferable from the evidence isimproper.21 Here, the jury heard evidence that appellantbrought a large quantityof cocaine to the place 

### where the sale was to be made. The State's characterization ofappellant as a "supplier" is
a reasonable deduction from the evidence of appellant's involvement in the drug transaction.22 Thus, the trial court correctly overruled appellant's objection. We overrule appellant's third point oferror. INEFFECTIVE ASSISTANCE OF COUNSEL In his fourth point oferror, appellant contends he received ineffective assistance of counsel. We examine ineffective assistance of counsel claims during the guilt-innocence 

### stage of trial by the standard set outin Strickland v. Washington" and adoptedby theTexas Court of Criminal Appeals inHernandez v.State.2* To prevail on such a claim, an appellant must first show his counsel's representation fell below an objective standard of 

### reasonableness.25 The appellant must then show a reasonable probability that a different
2" Coble v. State, 871 S.W.2d 192. 205 (Tex. Crim. App. 1993), cert, denied. 513 U.S. 829 (1994). 21 Borjan. 787 S.W.2d at56. 22 See Soto v. State. 810 S.W.2d 861, 865 (Tex. App.--Fort Worth 1991. pet. ref'd)(argument thatdefendant was "drug dcali-r" was reasonable deduction from evidence that he possessed drug manufacturing paraphernalia).
* 466 U.S. 668(1984). 24 726 S.W.2d 53. 57 (Tex. Crim. App. 1986). 25Jackson v. State. 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez. 726S.W.2d at55.

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### outcome would have resulted but for his trial counsel's unprofessional errors.26 A reasonable probability is one sufficient to undermine confidence in the outcome.27 

### We do not judge counsel's trial decisions in hindsight.28 We strongly presume counsel's competence.2" An appellant can rebut this presumption byshowing hisattorney's representation was unreasonable under prevailing professional norms, and the challenged 

### action was not sound trial strategy.'0 That another attorney might have pursued a different course of action does not necessarily indicate ineffective assistance.'1 In reviewing an ineffectiveness complaint, we examine the totality ofcounsel's representation to determine 

### whether appellant received effective assistance of counsel.'2 An appellant must prove ineffective assistance of counsel by a preponderance of the evidence." Appellant asserts that his trial counsel's failure to object in a timely manner or to

2" Jackson. 877 S.W.2d at771; Hernandez, 726 S.W.2d at55. 27Jackson, 877 S.W.2d at771; Hernandez. 726S.W.2d at55. 28See Miniel v. State, 831 S.W.2d310. 323 (Tex. Crim. App.), cert, denied, 506U.S. 885 (1992) (stressing need toavoid "distorting effects of hindsight"). *' Weeks v.State. 894 S.W.2d 390, 391 (Tex. App.--Dallas 1994. no pet.).

'°Jackson. 877 S.W.2d at771; seeMiniel. 831 S.W.2d at323.

" See Hawkins v. State. 660 S.W.2d65, 75 (Tex. Crim. App. 1983). ,2Butlerv. State.716S.W.2d48.54(Tex.Crim.App. 1986);Burnettv.State,784S.W.2d510,513(Tex. App.-Dallas1990, pet. ref'd).

" Moore v. State, 694S.W.2d528, 531 (Tex. Crim. App. 1985).

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### obtainrulings from the trial court constitutedineffective assistance of counsel. Specifically, appellant points to counsel's failure to (1) object to the introduction of the magazine and bullets into evidence, (2) obtain a ruling on her objection to the State's argument that the jury must first decide appellant was not guilty ofpossession with intent to deliver before it 

### considered the offense of mere possession, and (3) timely object to the State's characterization of appellant as a "supplier" of drugs. Because we have already concluded that the gun was admissible, it necessarily follows that the trial court would have properly overruled an objection to admission of the magazine and bullets. Likewise, because the 

### prosecutor's jury argument was proper, the trial court would have overruled any earlier objection. We conclude appellant's attorneywas not ineffective for failing to make meritless 

### objections.14 

### Appellant also argues counsel was ineffective for failing to object to the portion of the jury charge instructing the jury to consider the greater offense first. We note appellant 

### does not contend on appeal that he was egregiously harmed by the charge.35 Moreover, appellant concedes that courts have recognized conviction of a lesser included offense 

### necessarily acquits the person of the greater offense by operation oflaw.'6 Therefore, an instruction directing the jury to first acquit the defendant of the greater charge before

See Ellis v. State, 722 S.W.2d 192, 198(Tex. App.--Dallas 1986,no pet.). 35 See Almanza, 686 S.W.2d 157. 171 (Tex. Crim. App. 1985) (op. on rch'g).

'"'See, e.g.. Samplev. State. 629 S.W.2d 86. 88 (Tex. App.--Dallas 1981, no pet.).

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### considering the lesser is not contrary to the law." Thus, the trial courtwould have properly overruled an objection to the jury charge on this ground. Under these circumstances, we 

### conclude counsel was not ineffective for failing to object to the jury charge.'8 Our review ofthe entire record shows trial counsel developed a viable defense that 

### appellant did not know that the substance in the Coca Cola carton was cocaine, filed appropriate pretrial motions (including a motion in limine and a motion to suppress evidence), and effectively cross examined the State's witnesses. The fact that the jury did 

### not believe appellant's version of the facts does not mean that his trial attorney was ineffective.39 Having reviewed the entire record, we conclude trial counsel's overall 

### representation of appellant does not show appellant received ineffective assistance of counsel. Moreover, appellant has not demonstrated that the result of the proceedingwould have been different but for counsel's alleged deficiencies. Accordingly, we overrule appellant's fourth point oferror.

37SeeTennerv.State. 763S.W.2d877, 883-84 (Tex. App.--Fort Worth 1988. pet. ref'd)(trial courtmayinstructjurythey must acquit defendant of greater charge before considering lesser charge). 38 See Ellis,722 S.W.2d at 198. 3" See Hernandez v. State. 799 S.W.2d 507, 509 (Tex. App.-Corpus Christi 1990, pet. ref'd).

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### We affirm the trial court'sjudgment.

Do Not Publish Tex. R. App. P. 47.3 960966F.U05

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### JI^MOSELEY JUSTICE