1 Andersv. Ca lifornia, 386 U .S. 7 38, 87 S .Ct. 1 396, 18 L.Ed. 2d 493 (1 967). NO. 07-02-0085 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JULY 24, 2002

______________________________ MYRNA M ARIE HOLT, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 84 TH DISTRI CT COURT OF OCHIL TREE COUNTY; NO. 3464; HON ORABLEW ILLIAM D . SMITH , JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Upon a plea of not guilty , app ellant Myrna Marie Holt was convicted by the trial court o f deliver y of a controlled su bstance and pu nishm ent w as ass essed a t two years confinement

in a state ja il facili ty. In presenting this appeal, counsel has filed an And ers 12

brief in support of a m otion to withdraw . Based upon t he rationale expressed herein, the mot ion to withdraw

is granted and the j udgme nt is affirmed. In support

of his m otion to withdraw , counsel has certified that, in com pliance with Andersv. California, 386 U.S. 738, 744-45, 87 S.Ct. 139 6, 18 L.Ed.2d 493 (1967), he has dilige ntly reviewed therecord and, in his opinion, the record reflects no m eritorious ground on w hic h an appeal can be predicated. Thus, he concludes the appeal is frivolous and without merit. In compliance with High v. S tate, 573 S.W.2d 807, 813 (Tex .Cr.A pp. 1978 ), counsel has candidly discussed w hy, under the con tro lling a uth orit ies, the re isno e rro r in the court's j udgme nt. Counsel has also show n that he sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the app eal is without m erit. In addition, counsel has dem onstrated that he notified appellant of her right to review the record an d file a pro se brief. Appellant filed a letter brief and the State did not favor us w ith a brief. On March 11, 2000, a fri end of appel lant’s nam ed Ronnie Eisenm an sold his car to her. At that time Eisenman introduced appel lant to Karma Hamm onds. Twodays later, on March 13, 2000, appellant went toEisenm an’s residence to pay thebalance owed on the car. Whi le appellant was at E isenman’s , Ham monds showed up. According to Hamm onds, appellant asked her if she was “still looki ng” for cran k. Ham monds acted intereste d and left br iefl y to call th e Ochil tree County Sheri ff’s Office and alert them that appellant was s elling narcotics and that she was willin g to act as an informant and make a buy.3

Ham monds

m et w ith D epu ty S her iff P hillip LaRue at a designated area and she w as given $100 to com pl ete the transacti on with appell ant. She returned to Eisenman’s res idence and w

as followed by La Rue, w ho parke d over ablock aw ay. A ccord ing t o Hamm onds, she and appellant went to the bathroomtogether where appellant show

ed her numerous

baggies of m etham phetam ine and she selected one in exc hange for $100. She im m edia tely

left and m et with LaRue at the designated area a nd turned the baggie of narcotics over to him

. Counsel presents tw

o arguable poi nt s of error on appeal. He challenges the sufficiency of the evidence to suppo rt the conviction and raises ineffective assistance of trial counsel. However, af ter a discussi on of the evide nce and the le gal author itie s, counsel candi dly co ncedes no reve rsib le er ror i s prese nted. By her letter brief, appellant ess ent ially

raises the sam e com plaints. W e first addr ess the suffici ency of the evidence. W hen both the legal and factual sufficie ncy of the eviden ce are chall enged, we must first determ ine whether the evidence is legally sufficient to support the verdict. Clewis v. S tate, 922 S.W.2d 126, 133 (Tex.Cr.App. 1 996). It is a fundam ental rule of criminal law that one cannotbe convicted of a c ri me unless it is shown beyond a reasonable doubt that the defendant

commi tt ed ea ch el emen t o f th e a ll eg ed of fe ns e. U.S . Co ns t. amen d. XIV ; T ex. Code Crim. P roc. Ann. art. 38. 03 (Vernon Supp. 2 002); Tex. P en. Code Ann. § 2.01 (Vernon 1994). In conducting a l eg al suf fi ci en cy r ev ie w, we mu st determ ine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact4

cou ld have found the ess ential elements of the crime beyond a reasonable doubt. Jac kson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 278 9, 61 L.Ed.2d 560, 573 ( 1979); Geesa v. State, 820S.W.2d 154, 157 (Tex.Cr.App. 1 991), overruled onother grounds , Paulson v. State, 28 S .W.3d 5 70, 573(Te x. Cr. Ap p. 2 000 ). A s an app ellate co urt , we m ay n ot s it as athir tee nth j uro r, b ut m ust

uph old t he verd ict unle ss itis irrational or unsupported by m ore than a m ere mo dicum of evidence. M oreno v. State, 755 S.W.2d 866, 867 (Tex. Cr.Ap p. 1988)

. After conducting a legal sufficienc y review under Jackson , we ma y proceed w ith a factual sufficie ncyreview. Cle wis , 922 S .W.2d at 133. TheCourt of Criminal Appeals has directed us to ask w hether a neutral review of all the evidence, both for and agai nstthe finding, dem onstrates that the proof of guilt is so obviously weak asto undermine confidence in the fact finder’s determ ination, or the proof of guilt, although adequa te if taken alone, is greatly outweighed by contrary proof. Johnson v. S tate, 23 S.W.3d 1, 11 (Tex.Cr.A pp. 2000) (adopting com plete civil factual sufficiency formulation); see also King v. State, 29 S .W.3d 556, 563 (Tex.C r.App. 2000). Acco rdingly, w e will re verse the fact finder’s determ ination only if a manifest inj ustice has occurred. Johnson , 23 S.W.3d at 12. In cond uct ing t his analysi s, w e m ay d isag ree w ith t he f act find er’ s de ter m inat ion, eve n if probati ve evid ence su ppo rtsthever dict , bu t m ust

avo id substituting our judgm ent for that of the fact finder. See Sante llan v. State, 93 9 S.W.2d 155, 1 64 (Tex .Cr.A pp. 1997 ).5

Beforedeterm ining whether the evidenc e is legally sufficient to sustain the conviction, we mu s t review the es sential elements the S tate was required to prove. Appellant was indicted for intentionally and knowingly delivering, by actual transfer to Ka rma Ham monds , m etham phetam ine in an amount of less than one gram

. SeeT ex . Health & Safety C ode An n. § 481 .112(a) & (b) (Ver non Supp. 2002). A ctual transfer consists of transferring the real possession and control of a cont rolled substance fromone person to another person. N evarez v. State, 767 S.W.2d 766, 768 (Tex.C r.App. 1989) (en banc). The evidence presented at trial was contradictory. LaRue testified that he searched Ham monds

and her car

prio r togivi ng h er t he m one y tom akethebuy and aga in searched her after the buy. H is written report recites that he searched her before thebuy, but does notindicate that Ham monds was s earched after the buy. Ham monds , howeve r, testified thatLaRue never searched her or her car, and that shedid notget out of her car w hen she turned the m etham phetam ine over to him . Ham monds did acknowledge that La Rue “checked her out” and took her w ord thatshe did not have any cont raband on her person before the buy. Ham m onds pu rchased a plastic b aggie containing a pow dery substance from appellant for $100. A ch emist with the Texas Departm ent of Public Safety testified thathe tested the substance and determ ined thatit was .90 gram s of m etham phetam ine. Vie w in g the evidence in the light most favorable to the prosecution, we find that any6

rational trier of fact could have found th e essent ial elements of the crim e beyond a reasonable doubt. Jackson , 443 U.S. at 318. Having concluded thatth e e vi de nc e i s l eg al ly suf fi ci en t to sup po rt th e ve rd ic t, we mustno w determ ine, after a neutral review of all the evidence, w hether it is fa ctu all y sufficient to support the verdict. Johnson , 23 S.W.3d at 11. Itis the exclusi ve province of the fact finder to determ ine the credibili tyof the w itnesses and the w eight to be given their testimony. Johnson v. S tate, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Arm strong v. State, 95 8 S.W.2d 278, 284 (Tex.App.–A marillo 1997, pet. ref’d). Hamm onds’s mo tive for helping authorities apprehend appellant was questionable. Eisenm an testified that Ham monds vowed to get back at appellant for turning Ham monds do wn on a three-way s exual encounter. S he also vowed revenge because she had l ost her childr en and clai med that appellant did not deser ve to have her chi ld. Specifi cally, Ham monds

tes tifie d th at h er m otive in helping the authorities was based on thefollowing: I do not have m y children. They were taken away fro m m e. A nd h ere is this wom an that has ripped her child’s ear and given her child drugs. So I did not think that she needed to have her child. Ham monds , howeve r, claimed that s he helped the authorities as part of her civic duty to appellant’s child.7

Ron nie Eis enm an test ified tha t hew as told conflicting stories by both appellant and Hamm onds. He claimed t hat both of them adm itted to him that at “one tim e theyhad did [sic] a dope deal.” He also testified that about oneweek after March 13t h, appellant asked himif Ham monds

was“co ol” because she had s old her narcotics. Eisenm an adm itted that he never witnessed a drug transactio n take place at hi s h ome on March13th, but explained thathe w

ould not have know n about it if the deal took place in his bathroom. D espite the contradi ctions, we m ust avoid substituting our ow n judgm ent for th a t of the fact find er’s. Thus, after a neutral review of all the evidence, we find it is fac tually suff

icient to s upport appell ant’s convicti on. Johnson , 23 S.W.3d at 11. W e agree with couns el that the evidence is suf

fic ient to s upp ort

app ellan t’s

con viction and tha t norev ers ible e rro r is presented by point of error one. Counsel raises i neffective assi stance of t rial coun sel a s his second arg uab le point of error. W e review a claim of ineffective assistance of coun sel by the standard set f orth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 20 52, 80 L.Ed.2d 674 (1984). Under Stric kland , a defendant must establi sh that (1) counsel ’s performance was def icient ( i.e. , fel l below an obj ect ive s tan dar d of rea son able nes s), and (2)the re isa re aso nab le probability that but for counsel’s deficient perform ance, the result of thepro cee ding w ould have been different, a reasonable probability being a probabil ity sufficient to underm ine confidence in the outcom e. Hernan dez v. State, 726 S .W.2d 53, 55 (Tex .Cr.A pp. 1986 ).8

The assessm ent of w hether a defendant received ineffecti ve assistance of counsel is based on the facts

of each case. Ex P arte Scott, 581 S.W.2d 18 1, 182 (Tex .Cr.App. 19 79)

. Any allegation of ineffectiveness m ust be firm ly founded in the record and the record m ust

aff irm atively d em ons tra te t he a llege d ine ffe ctiveness. McF arland v. State, 928 S.W.2d 482, 500 (Tex.C r.A pp. 199 6), cert. deni ed , 519 U.S. 11 19, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). An appellate court looks tothe totality of the representation and the particularcirc umstances ofeach cas e in e valu atin g couns el’s p erfor mance. Ex P arte Felton, 815 S.W.2d 733, 735 (Tex.Cr.App. 1991). How ever, it is possible tha t a si ngle egregious error of

om ission or comm ission by counsel constitutes ineffective assistance. Thomps on v. State, 9S.W.3d 808, 813 (Tex.C r.App. 1999). A fter proving error, a defendant

must also affirmatively dem onstrate prej udice. McFarland , 928 S.W.2d at 500. Any judicial review m ust be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. 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.A pp. 1993). A st rong presum ption exists thatdefense counsel's conduct falls withi n a wi de range of reasonable representation. Stric kland , 466 U.S. at 690, 104 S.Ct. at 206 4, 80 L.Ed.2 d at 695; Dew berry v. State, 4 S.W. 3d 735, 757 (Tex.C r.App. 1999), cert. deni ed , 529 U.S. 11 31, 120 S.Ct. 2008, 1 4 6 L.Ed.2d 958 (2000). A review of t he e ntir

e re cor d es tab lishe s th at coun sel v igor ous lycross-exa mined the State’s witnesses and m ade num erous objections, s ome of which w ere sustained. By9

her letter brief, appellant claims that defense counsel refused to present an y witnessesor use an alleged tape recording she m ade of conversations w ith Eisenman. She claims that Eisenm an testi fied favo ra bly f or t he S tate in exc han ge f or h avin g ch arg es a gain st h im dropped. S he also alleges that trial counsel “li ed” to her about w inning her case i f sh e w aive d a j ury

tria l. Rar ely is a review ing court

provided with a record on direct appeal that establishes a fair evaluation of the merits of a n ineffecti veness clai m involving ser ious al legati ons. Thompson , 9 S.W.3d at 813. On the record b efore us, ap pe l l an t i s u na bl e t o o ve rc ome the str ong pre sum ptio n th at coun sel’ s pe rfo rm ance was r eas ona ble a nd p rof

ess iona l. Mitche ll v. State, 68 S .W .3d 640, 642 (Tex .Cr.App. 2002). None of the contentions raised byappellant are presented in the record before us. A collateral attack may

be theveh icle necess aryto develop a sufficient record on alleged errors of om ission. Jackson v. State, 973 S .W

. 2d 9 54, 957(Te x. Cr. Ap p. 1 998 ) (e n ba nc) . Th us, w e ag ree tha t norev ers ible error is presented on an ineffective assistance claim as suggested by counsel’s second point of error. We have als o m ade an inde pendent exa m ination of t he entirerecord to determ ine whether there ar e any othe r arguable grounds which m ight support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct . 346, 102 L.Ed.2 d 300 (1988). W e have found no nonfrivolous issues and agree w ith counsel that the appeal i s w ithout merit and i s,10

therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.A pp. 1974); Lacy v. State, 477 S. W .2d 577, 578 (Tex .Cr.A pp. 1972 ). Accordingl y, counsel's m otion to withdraw is hereby granted and the j udgme nt of the trial court is affirmed. Don H. Rea vis Justice Do not publish.