NO. 07-01-0287 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JUNE 18, 2002

______________________________ KERRY LAYNEZEEK, APPE LLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 31stDISTRICT COURT OF GRAY COUNTY; NO. 6043; HON ORABLESTEVE N R. EM MERT, J UDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Upon a plea of not

guilty, a jury conv icted appellant Kerry Layne Zeek of possession of a controlled substance w ith intent to deliver an d answered affirmatively on use of a deadly weapon. P unishment w as assessed at 60 years and a $10,000 f ine. Presenting two points of error, appellant contends (1) the ev idenc e is insufficient to prove he know ingly

possessed m etham phetam ine or a d eadl y weapon, and (2) he wa s denied2

reasonably effective assistance of counsel in violation of the Constitutions of Texas and the United States. Based upon therationale expressed herein, we reform the judgm ent to de l et e t he affi rma ti ve fi nd i ng of a d ea dl y we ap on an d, as re fo rme d, we a ff i rm. Appellant was a passe nge r in a car dr iven and owned by Fra nk Pechacek. Appellant did not know P echacek, but tes tified that friends had arranged for him to geta ridehom e toPa m pa f

romAm arillow ith P ech ace k. While en r oute, a ppe llant

fell asleep, butw as aw oke n by

Pe cha cek

in Pam pa to get directions. Detec tive Con ner, a K

-9 office r, testifi ed that on August 23, 200 0, in a section of Pam pa known as Prairie Village, a high
cr i me area, he stopped P echacek for a m inortraffic violation. After Pechacek consented to a search of the ca r, m etham phe tam ine was foun d in a plastic baggy on the center console. A further search by the K-9 dog led to the discovery of a black shaving ba g containing mo re met hamph etam ine and drug paraphernalia, as well as an unloaded .22 caliber pistol l ocated in a duffle bag.
At th e t i me of the stop appellant was not under the influence of drugs and did not have any contraband on his person. According to the arresting officer, appellant did not have a wallet, driver’s license, nor m oney on his person, but did have a s et of car keys an d
a daily planner. Appellant acknow ledged that initiall y, he gave theoffi ce r h i s wi fe ’s na me and date of birth, but ex plained he did so because of an outstandi ng arrest w arrant. Appellant otherw ise denied a ny knowledge of t he contents of the bag s and pis tol before the stop.3

Byhis f irst issue, appellant contends the evidence is insufficient to prove he knowingly possesse d m etham phetam ine orthat he used a deadly w eapon. Interpreting his contention to be a challenge to the legal sufficiency of theevid ence, w

e w ill rev iew

all the evidence in the light mo st favorable to the verdict to determine w hether any rational trierof fact could find the essent ial el eme nt s o f t he cr i me as alleg ed b eyo nd area son able doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 278 1, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 82 0 S. W. 2 d 154, 157 (Tex. Cr.App. 1991), overruled on other grounds , Paulson v. State, 28 S.W.3d 570, 573 (Tex.C r.App. 2000). It is a f undam ental ruleof criminal law that onecannot be convicted of a crim e unless it is shown beyon d a
rea son abledoubtthat the defend ant committed ea ch el ement of the a ll eged o ffense . U.S. Const. am end. XIV; Tex. CodeCrim. P roc. Ann. art. 38.03 (Vernon S upp. 2002); Tex. Pen. Code Ann. § 2.01 (Vernon 1994). As an ap pellate court, we m ay not sit as a thirteenth juro r, but m ust uph old t he j ury 's v erd ict unle ss it isirrational or unsupported by m ore than
a me re mod icum of e vidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex .Cr.A pp. 1988 ).
B efore determ ining whether the evidence is legally sufficient to sustain the conviction, we m ust review the essential elements the State w as required to prove. In order to establi sh unlawful possession of a controlled substance with intent to deliver, the State was

required to pro v e that appellant exercised actual care, c ustody, control, or manag ement

of the contraba nd and that he knew the substance he possessed w as contraband. See Tex. Health & Safet y CodeAnn. § 481.11 2(d) (Ve rnon Su pp. 2002 ); Te x.4

Health & Safety

Code Ann. § 481.002(38) (Vernon 1992); K ing v. State, 895 S .W .2d 701, 703 (Tex .Cr. App. 1995) (en banc); M artin v. State, 753 S .W .2d 384, 387 (Tex .Cr.App. 1988). These elements m ay be proved by circums tantial evidence. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Cr.App. 1 985). Intent to deliver m ay be proved by circumstantial evidence, including the e vide nce surrounding its possession and the quantityof contraband posses sed. Reece v. State, 878 S .W .2d 320, 325 (Tex.App.–H ouston [1stDist.] 1994, no pet.). Further, the State was required to pro ve that appellant used or ex hibi ted a dea dly weapon duri ng the comm ission of the offense charged . Tex . Code Crim . Proc . Ann. art. 42 .12, § 3 g(a)(2) (Vernon S upp. 200 2). Appellant was not

t he ow ner or d river of the car in which the contraband was discovered; thus, he w as not in exclusive control. Hum ason v. State , 728 S.W.2d 363, 365-66 (Te x. Cr. Ap p.1 987 ). M ere pre sen ce n ear thecon tra ban d was in suf fici e nt to establish possession. Mc Go ldric k, 682 S.W.2d at 578. Thus, the State w as required to establi sh an affirmat ive link between appellant and the contraband. Id ; Gilbert v. State, 874 S.W.2d 290, 297 (Tex.App.--Hou ston [1st Dist.] 1994, pet. ref'd). “Affi rmative links”
as explained by

the Court in Brow n v. State, 9 11 S. W.2d 74 4 (T ex .Cr .A pp. 199 5), is s im ply a shorthand ex pression of what mus t be proven to establish that an accused possessed
so me kind of contraband knowingly or intentionally, and is used to evaluate th e suffici ency of theevid ence. D avisv. State, 92 3 S.W.2d 781, 786 (Tex.A pp.--Beaum ont 1996), rev'd
on other grounds , 947 S.W.2d 240 (Tex.Cr.App. 1997). Alth ough a li st of affirmative l inks5

is not exhaustive, s ome additional facts tending to establi sh affirmative links include: (1)
an amoun t of contraband large enough to indicate the accused knew of its existence; Carvajal v. State, 52 9 S.W.2d 517, 5 20 (Tex .Cr.A pp. 1975 ) cert. deni ed , 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976); Ortiz v. State , 930 S.W.2d 849, 853 (Tex.A pp.--Tyler 1996, no pet.); (2) the accused was the owner and drive r of the vehicle where the contraband was f

ound; (3) the contraband w as found on the sam e side of the seat as the accused was s itting; (4) the contraband was in an enclosed pl ace; (5) parap hernali a to use the contraband was in vi ew of th e a ccused; and (6) occu pants of the vehi cle gave conflicting statem ents; see Autran v. S tate, 830 S.W.2d 807, 8 11 (Te x.App .--Beaum ont 1992), rev'd

on other grounds , 887 S.W.2d 31 (Tex.Cr.App. 19 94); W hitworth v. S tate, 808 S.W.2d 566, 569 (Tex.A pp.--Austin 1991, pe t. ref'd). Further, in W illi ams v. State, 90 2 S.W.2d 505, 507 (Tex.A pp.--Houston [1st Dist.] 1994, pet. ref’d), the co urt h eld t hat in addition to the above factors, thedefendant’s poss ession of a large am ount of cas h co uld also be considered as circum stantial evidence of intent to deliver a controlled substance. Appellant had no cas h on himat t he t im e of his arr est . M ore ove r, law

enf orc em ent

off icial s did not attem pt to connect appellant to the con traband or the weapon by fingerprints.
Joint possession is not established by the m ere pres ence at a place w here contraband is found. Und erwo od v. S tate, 5 71 S.W.2d 7, 9 (Tex. Cr.Ap p. 1978)

. Appella nt’s sta tusas a pa sse nge r in the car did not j ustify a finding of joint poss ession of the contraband. McGoldrick , 682 S.W.2d at 574. As suggested bythe State, w e will focus6

our attention to direct evidence connecting appellantto the bags, contraband, and w eapon rather than af firmative li nks. The State conten ds that Pechacek’s

voluntary handwritten statem entconstitutes direct evidence establishing appe lla nt’s guilt. By his handw ritten statem ent, Pechace k, w hile giving an account of the directions given by appellant implicated appellant to the bags, contraband, and weapon. Among other things, the statement recites:
While turning, [appellant] madeobservation of a police ca r com ing toward us. And -- and said be cool

. . . . Just a couple blocks I told [appellant] I was just going to drop him and his stuf f (bags, daytim er, etc.) off . . . and * * * As I t urned, t he office r behind m e, turne d his lights o n and pu lled m e over. As I stopped, [appel lant] got ver y nervous and starte d acting funn y. Considering the evidence in the light mo st favorab le to the verdict, we conclude that a rationa l trier of f act could have found the es sential elements of the crime as a lleged beyond a reasonable doubt. P oint of error one is overruled. Byhis second point of error, appellantcontends he was denied r easonabl y effective assistance of

counsel i n viola tion of the Const ituti ons of Texas and the Unite d States. We agree to the ex

tent ex plained her

ein. To e sta blish inef fec tiveass ista nceof coun sel, ap pella ntmu st show

that (1) counsel’s perform ance was deficient ( i.e. , fell below an objective standa rd of reasonableness), and (2) there is a reason able probabili tythat but for c ounsel’s deficient perform ance, the result of the procee ding would have been different,7

a reasonable probability be ing a probability sufficient to undermine confidence in the outcom e. Strickland v. Washington, 466 U.S. 668, 10 4 S.C t. 2052 , 80 L.E d.2d 674(1984); Hernand ez v. S tate, 7 26 S.W.2d 53, 5 5 (Tex .Cr.A pp. 1986 ).
The adequacy of defensecounsel’s assista nce is based upon the totality of the representation rather than by isolated acts or omissions of tri al counsel . Garcia v. State, 887 S.W.2d 862, 880 (Tex .Cr.App. 1994), cert. deni ed , 514 U.S. 10 21, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). Although the constitutional right to counsel ensures the right to
rea son ably

eff ect ive coun sel, itdoes not guarant ee errorl ess counsel whose competency or accuracy of representation is to be j udged by hindsight. Inghamv. State, 67 9 S.W.2d 503, 509 (Tex.Cr.A pp. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). A strong presumption exists that defen se counsel' s conduct fa lls within a wide range of reasonable representation. Stric kland , 466 U.S. at

690, 1 04 S.Ct. at 2064, 80 L.Ed.2d at 695; Dew berry v. State, 4 S .W.3d 735, 757 (Tex.C r.App. 1999), cert. deni ed , 529 U.S. 1131, 1 20 S.Ct. 2008, 146 L.Ed.2d 958 (2000 ). To sustain a challenge of ineffecti ve ass ist ance, it m ust be firm ly founded in the record, Mercado v. State, 615 S.W.2d 225, 228 (Tex.C r.App. 1981), and thede fe nd an t mu st ov er co me the presum ption thatcounsel's conduct m ight be considered sound trial str ategy. Jackso n v. State, 8 77 S.W.2d 768, 77 1 (Te x.C r. App. 1994). After provi ng error, a de fendant must also affirm ativ elyde mons trate prejudice. Ga rc ia , 887 S.W.2d at 880. Failure to make the8

required showing of either deficient perfo rmanc e or sufficient prejudice defeats the ineffectiveness claim. Id

. Specifica lly, appellant f aults trial co unsel for:

• failing to objec

t to t he court’s ex

cusal of venirewom an Veazey for cause;

• failing to prepare and present mitigati on evidence atthe punishm ent phase to provide the j ury with an alternative to a l en gt hy pr i so n t er m; and

• introducing a statem ent of FrankPechacek, t he owner and driver of the vehicle, that tenuously connected appellant to the contraband. Because the first two com plaints are acts of om ission rath er than com m ission and a re not fully develop ed in therecord , we w ill dire ct o ur a tte ntio n tothethir d allegation that counsel’s conduct fell short of the reasonable standard of perform ance.
As reflecte d by the court’s charge, the judge instructed the jury that a person
com mitsan o ffense if he knowi ngly o r in tenti

onall y poss esses

wi th i ntent t o deli ver a controll ed substance. The cou rt then defi ned terms and instructed th e jury as follows:
“Possession” me ans actua l care , custody, cont rol or managem ent of the controlled substance. W ith respec

t to th e ”p osse ssion” char ged, you are i nstructed that such possession is a voluntary act if the posses sor knowingly obtains or receives the th i ng po ss es se d o r i s a wa re of hi s c on tr ol of

th e t hi ng fo r a su ff i ci en t t i me to p erm it him

to term inate hiscon tro l.1 W ithout possession, a person cannot deliver contraband. However, possession

does not necessarily establish intent to deliver. 9 * * * The term “deliver” as used herein, m eans the actual or construct ive transfer from one person to another of a controlled substance, w hether or not t here is an agency relationship. * * * A person acts know ingly, or with know ledge, with respect to thenat ure of h is conduct or to circum stances surrounding his conduct w hen he is aware of the nature of his conduct or t hat the circum stances ex ist. As above noted, becaus e appellant was only the p asseng er a nd was not in exclusive control of the car, the State had to a ffirmativel y link ap pell ant to possess ion of th e contrab and w ith intent to deliver. 1 During the guilt/innocence phase while Officer Morris, a tas k force agent w ho had received evidence from Officer Conner, was on the stan d, defense counsel offered an
unsw orn two-page han dwritten hearsay s tatem ent, portions of which w ere illegi ble, made byPe chace k. This offer prom pted the State to object to the statem ent on hearsay grounds. N otwith standing the State’sobjection, defe nse counsel persisted in seeking admission of the hearsay sta tem ent. Although the Stat e withdrew its objection and defense counsel shou ld hav e been alerted that the State m ay have considered the statem entfavorab l e to its position, Morris read it to the j ury, including the following excerpts:10

[A ppe lla nt] told me turn left, I did. Just a couple of blocks I told him I w as just going to drop him and his st uff off at the

. . . . * * * I could drop of him and his s tuff and then return hom e . . . . (Em pha sis added). Although appellant testified that he did not have any luggage or bags when he m ade the trip to Pam pa, by his stat ement , P ech ace k m adetw o sp ecif ic references to appell ant’s “stuff.” In addi tion to conne ct ing appellan t to the “stuff” in the hearsaystatem ent, Pechacek also desc ribed appellant as acting nervous and funny w hen the officer m ade the stop.
The State suggest

s that counsel’s introduction of thehearsay statem ent was sound trial strategy corroborating appellant’s punishm ent pha se evidence. W e disagre e because the statem entwas introduced during the guilt/innocence phase. Further, whe ther counsel introduced the entire statem ent during guilt/innocence because it waspar tially illegi ble or because counsel simply failed to carefully read the entire statem ent is notcontrolling. W e conclude tha t co uns el’s intr odu ctio n of

Pe cha cek ’s sta tem ent con stit ute d de fic ie nt performan ce. Having determ ined that counsel’s perform ance was error, we m ust decide whet her there is a rea son ableprobability tha t bu t fo r co uns el’s err or, theres ult of th e tr ial w ould have been different. We comm ence our review by focusing on th e rule tha t a determ ination of the adequacy of counsel’s assistance is bas ed upon the totality of the11

representation rath er than by isolated acts or om issions of trial counsel. Ga rc ia , 887 S.W.2d at 880. Although in Ex Parte Dunham , 650 S.W.2d 825, 826-27 (Tex.Cr.A pp. 1983) (en ban c), cou nse l w as found i neffective i n one isol ated instan ce, his conduct prompted the client to waive his right to a j ury trial knowing that the w aiver was not in the clien t’s best interest. Also, Ex P arte Dunhamwas determined in a hab eas co rpus proceeding where the record was fully developed. In Jackson v. S tate, 766 S.W.2d 504, 509 (Tex.Cr.A pp. 1985), overruled on other grounds , Ex Parte Cruz, 739 S.W.2d 53, 59 n.1 (Te x. Cr. Ap p. 1 987 ), t he C our t de ter m ined tha t co uns el’s sing le act constituted ineffecti ve assista nce w here it resulted in the client’s waiver of a valuable statutory right. Here, how

eve r, r eview ing t he r

eco rd a s a w hole , we fin d t hat appellant did not waive a valu ableconstitutional orstatutory right b y couns el’s def icient perfo rm ance. Thus, w e are una ble to conclude that the result of t he proceeding wou l d have been different due to counsel’s isolated act. Appellant’s second point of error is overruled.
Dem onstrating com menda ble professional candor, during oral argum ent, the State conceded that the deadly weap on f in ding should be disregarded because it was not subm itted to the j ury until the charge on punishm ent. See Tex. Code Crim. P roc. Ann. art. 37.07(4) (Vernon Supp. 2002); see Hill v. State, 913 S .W.2d 581, 586 (Tex.C r.App. 1995). Accordingl y, we reform the judgm ent of the trial cou rt to de letethedea dly weapon finding. Banks v. State, 70 8 S.W.2d 460, 4 62 (Tex .Cr.A pp. 1986 ).12

Accordingl y, the judgm ent of the trial court is reform ed to delete th e affirmative finding of a deadly weapon and, as reform ed, is affirmed.

Don H. Rea vis Justice Johnson, J., concurr ing in result onl y. Do not publish.