FREDDIE LEWIS BREWER v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

FREDDIE LEWIS BREWER, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–08–01653–CR

Decided: March 31, 2011

Before Justices Bridges, Francis, and Lang

OPINION

Opinion By Justice Bridges

Freddie Lewis Brewer appeals his conviction for possession of cocaine in an amount of four grams but less than 200 grams with intent to deliver.   A jury convicted appellant and sentenced him to confinement for life.   In twenty issues, appellant argues (1) the trial court erred in permitting him to represent himself and denying his motion to suppress;  (2) the evidence is legally and factually insufficient to support his conviction or establish he had “intent to deliver”;  (3) the State failed to disclose exculpatory evidence;  (4) the trial court committed fundamental error by commenting on the State's case or on the evidence;  (5) it was fundamental error for the State to comment on appellant's failure to testify;  (6) the trial court abused its discretion in denying appellant's motion for new trial;  (7) he was denied due process because the trial court denied his request for retesting of the seized contraband and request for additional testing to determine the contraband's true weight and composition;  (8) he was denied due process because the trial court denied him a fair chance to present a motion for continuance and denied him the opportunity to include the issue of whether the jury improperly considered parole in the evidence used to determine his sentence;  (9) his sentence was the result of jury misconduct;  (10) he was denied effective assistance of counsel in the pretrial stage of trial;  (11) he was denied the right of confrontation as to evidence of internal affairs records of subpoenaed police officers;  and (12) he was denied due process when the State was allowed to reopen its evidence at punishment.   We affirm the trial court's judgment.

On May 9, 2007, officer Michael Arnold was working at his second job providing security at Dallas Auto Auction.   When Arnold arrived at the auction, a man approached him and told him another man was selling crack cocaine to some of the drivers.   The informant gave Arnold a description of the man selling cocaine, who wore a black glove on his right hand;  described his car as a tan Saturn station wagon;  and said the man would be selling cocaine between 1:30 and 2:30 in the afternoon.   Arnold relayed this information to officers Martin and Sanchez, who were also working security.   That afternoon, appellant arrived at the auction at the time the informant stated, and Martin observed appellant selling what appeared to be crack cocaine.   Arnold and Sanchez approached appellant and detained him.   Appellant was “resisting,” and he would not open his left hand.   Appellant wore a black glove on his right hand.   Arnold and Sanchez forced open appellant's hand and found a plastic case containing what they believed was crack cocaine.   The officers arrested appellant, and he was subsequently charged with possession of cocaine in an amount of four grams but less than 200 grams with intent to deliver.

At trial, appellant elected to represent himself.   The trial court conducted a pretrial hearing at which appellant was warned of the dangers and disadvantages of representing himself.   The trial court established appellant was an articulate high school graduate with experience doing legal research and writing as a “TDC writ writer.”   The trial court made appellant aware of the fact that there were technical rules of evidence and procedures that he had to follow, and he would not be granted any special consideration solely because he asserted his right to represent himself.   The trial court appointed a defense lawyer to sit in on the trial and assist appellant if he needed help.   A few days after the hearing, prior to voir dire, the trial court again verified that appellant wanted to represent himself and was making the decision freely and voluntarily.

Following voir dire, the trial court conducted a hearing on appellant's motion to suppress the evidence against him.   Arnold and Martin both testified as to the circumstances surrounding appellant's arrest, and the trial court denied the motion.   During the State's case in chief, Monica Lopez, supervisor of the drug laboratory at the Southwestern Institute of Forensic Sciences, testified the evidence tested contained cocaine in an amount of 3.8 grams which was ninety-four percent of the total weight of 4.05 grams.   Lopez testified the total weight of the cocaine including adulterants or dilutants was at least four grams or more but less than 200 grams.

Appellant stated he had “a problem with the weight” and pointed out that the entire sealed evidence bag “should weigh 39.5 tenths,” but “when it got to the lab, it weighed 39 grams.”   Appellant asked Lopez to account for the fact that the sealed evidence bag weighed 39 grams “in one set of forms” and weighed 39.5 grams on the form sent by the police department.   Lopez testified she used a reporting conversion where she truncated anything after the decimal place.   Thus, she reported the weight as 39 grams even though it actually weighed 39.8 grams.   Appellant made a motion to reweigh the evidence, which the trial court denied.

Dallas police detective Kurt Carroll examined the 39–gram sealed evidence bag and confirmed it appeared to contain crack cocaine broken up into different sized rocks.   Carroll testified someone selling crack rocks would cut up the rocks into different sizes to “lower overhead.”   Carroll testified he made undercover purchases and would expect to pay about $100 for a “big rock” and $10 or $20 for the smallest rocks in the evidence bag.   A typical single dose of crack consisted of “around a tenth of a gram” and sold for approximately $10.   The State had previously established that appellant was in possession of two $100 bills, nine $20 bills, nine $10 bills, and five $5 bills, for a total of $495.   Carroll testified that, if he observed someone engaging in what appeared to be hand-to-hand drug transactions and subsequently found crack and the denominations of money appellant possessed, he would conclude the person “definitely possessed it with intent to deliver.”   The jury subsequently convicted appellant of possession with intent to deliver cocaine in an amount of four or more but less than 200 grams.   This appeal followed.

In his first and second issues, appellant argues the trial court erred in permitting him to represent himself.   Specifically, he argues the trial court failed to adequately warn him of the dangers of self representation, in violation of Faretta v. California, 422 U.S. 806 (1975).  Faretta does not mandate an inquiry concerning appellant's age, education, background, or previous mental health history in every instance where an accused expresses a desire to represent himself, for the record may otherwise be sufficient for the Court to make an assessment of his knowing exercise of the right to defend himself.  Faretta, 422 U.S. at 836;  Johnson v. State, 760 S.W.2d 277, 278 (Tex.Crim.App.1988).   To make this assessment, we require no litany, “no formulaic questioning[,]” Blankenship v. State, 673 S.W.2d 578, 583 (Tex.Crim.App.1984), but defendants must be “aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”   Johnson, 760 S.W.2d at 278 (quoting Adams v. United States, ex rel. McCann, 317 U.S. 269, 279 (1942), cited in Faretta, 422 U.S. at 835).   Generally, the record must be sufficient for the reviewing court to make an assessment that appellant knowingly exercised his right to defend himself.   Johnson, 760 S.W.2d at 279.   Admonishments of defendants who wish to proceed pro se should include an effort to ensure that the defendant is aware of the practical disadvantages of representing himself.  Id. The defendant should be aware that there are technical rules of evidence and procedure, and he will not be granted any special consideration solely because he asserted his pro se rights.  Id. As Faretta held, his eyes should be open to the fact that, while it is undoubtedly his right, he is about to embark on a risky course.   Id.

Here, the trial court conducted a pretrial hearing at which appellant reiterated his desire to assert his right to represent himself.   The trial court first inquired into appellant's education, and appellant stated he had graduated twelfth grade.   Appellant stated he did not have legal training but had been a “TDC writ writer.”   The trial court made appellant aware that, if he represented himself, he would be required to follow all the rules of evidence and procedure that a lawyer would.   The trial court explained appellant would be required to follow the law just like the prosecutors.   Appellant said he understood and he still wanted to represent himself.   The trial court said it was appellant's right to represent himself, and he would be permitted to do so, but it was “dangerous” because appellant would be “facing very experienced prosecutors that do these cases every day and every week.”   The trial court asked appellant if he understood that, if the prosecutors insisted on procedural and evidentiary rulings, the court would follow the law, and appellant said he understood.   The trial court asked if appellant understood he had “two strikes against” him and was “starting out behind these trained lawyers.”   Appellant said he understood.   The trial court then stated an attorney would serve as stand-by counsel in the case and answer appellant's questions, give him legal advice, and tell him how to do things.   A few days later, before voir dire, the trial court again confirmed that appellant wanted to represent himself and that appellant's decision was made voluntarily.   Viewing the record in its entirety, we conclude appellant knowingly exercised his right to defend himself and, in so doing, relinquished the benefits of representation by counsel.   See Johnson, 760 S.W.2d at 279.   We overrule appellant's first and second issues.

In his third and fourth issues, appellant argues the trial court erred in denying his motion to suppress under federal and state law.   When reviewing a trial court's ruling on a motion to suppress, we view all of the evidence in the light most favorable to the ruling.   State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008).   When the trial court makes explicit findings of fact, we afford those findings almost total deference as long as the record supports them, Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997), regardless of whether the motion to suppress was granted or denied.  Garcia–Cantu, 253 S.W.3d at 241.   Therefore, the prevailing party is entitled to “the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.”  Garcia–Cantu, 253 S.W.3d at 241.   We afford the same amount of deference to the trial court's rulings on mixed questions of law and fact, if those rulings turned on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.   Other mixed questions of law and fact are reviewed de novo.  Kothe v. State, 152 S.W.3d 54, 62–63 (Tex.Crim.App.2004).   We review de novo the trial court's application of the law.  State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000).

A law enforcement officer is justified in detaining a person for investigative purposes if the officer has a reasonable suspicion to believe the individual is violating the law.  Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).   Reasonable suspicion exists if an officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead the officer to conclude reasonably that a particular person actually is, has been, or soon will be engaged in criminal activity.  Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007).   In making a reasonable suspicion determination, we disregard the subjective intent of the officer making the stop and consider solely, under the totality of the circumstances, whether there was an objective basis for the stop.   See Ford, 158 S.W.3d at 492–93.

A police officer may arrest an individual without a warrant if probable cause exists with respect to the individual in question and the arrest falls within one of the exceptions set out in chapter 14 of the code of criminal procedure.  Neal v. State, 256 S.W.3d 264, 280 (Tex.Crim.App.2008).   The statutory exception applicable to this case is article 14.01(b) of the code of criminal procedure, which permits a police officer to arrest an offender without a warrant for an offense committed in the officer's presence or view.   See Tex.Code Crim. Proc. Ann. Art. 14.01(b) (West 2005).   Probable cause to believe the person committed the offense exists where the officer possesses a reasonable belief, based on facts and circumstances either within the officer's personal knowledge or about which the officer has reasonably trustworthy information, that an offense has been or is being committed.  Neal, 256 S.W.3d at 280.   Once probable cause to arrest is established, a search incident to arrest may be performed.  McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003).   This permits officers to search a defendant, or areas in his immediate control, to prevent the concealment or destruction of evidence.   Chimel v. California, 395 U.S. 752, 762–63 (1974).

An important part of the totality of the circumstances test is an examination of the corroboration of details of an informant's tip by independent police work.  Whaley v. State, 686 S.W.2d 950, 950–51 (Tex.Crim.App.1985).   The Whaley court found this part of the analysis the key to the United States Supreme Court's decision in Draper v. United States, 358 U.S. 307 (1959), where an informant's detailed description of a suspect was corroborated by police surveillance.  Whaley, 686 S.W.2d at 951.   The Supreme Court found that because police surveillance verified every facet of information given by the informant in Draper except whether Draper was carrying the reported three ounces of heroin, the narcotics agents had reasonable grounds to believe that the one remaining bit of unverified information was also true.  Whaley, 686 S.W.2d at 951.

The trial court entered the following findings of fact and conclusions of law:

1. Based on anonymous tip officer Arnold had basis for observing def operate car the tip said was selling narcotics.

2. Sgt. Martin corroborated sufficient facts in the anonymous tip to continue observing the defendant.

3. Sgt. Martin observed one or more apparent drug transactions, based on his observational experience.

4. Sgt, [sic] Martin saw one final transaction of a hand to hand delivery and alerted Arnold and Sanchez to detain the defendant.

5. Defendant's clenched hand was Ibrced [sic] open in order for the police officers to handcuff him.

6. The controlled substance made the basis of the prosecution was discovered in the defendant's hand.

CONCLUSIONS

1. The officers had probable cause to detain or arrest the defendant based on the anonymous tip, which was corroborated, and to secure their safety by forcing his hand open.

2. The recovery of the contraband, therefore, was not the result of an illegal detention or search.

The record shows that, when Arnold arrived at the auction, a man approached him and told him another man was selling crack cocaine to some of the drivers.   The informant gave Arnold a description of the man selling cocaine, who wore a black glove on his right hand;  described his car as a tan Saturn station wagon;  and said the man would be selling cocaine between 1:30 and 2:30 in the afternoon.   That afternoon, appellant arrived at the auction at the time the informant stated, and appellant was driving the vehicle described by the informant.   Arnold testified, “It was a perfect description that was given to me early in the day.”

Martin observed appellant walk around the parking lot, and appellant made contact with several different individuals.   Martin testified appellant matched the description of the person that was allegedly selling drugs at the auction.   Martin saw appellant conduct what appeared to be a drug transaction with a middle-aged couple, but he could not see clearly, so he continued watching appellant through binoculars.   At that time of day, the temporary workers at the auction were paid, and a “money van” came to the auction so the temporary workers could cash their checks.   Appellant continued to make contact with different people who were waiting in line to cash their checks.   As appellant worked closer to Martin, Martin was able to get a better view of what was going on.   Through the binoculars, Martin saw appellant contact a man wearing a backpack and have a short conversation.   The man took off his backpack, unzipped a pouch on top of it, and took out some money, which he handed to appellant.   Appellant took the money and put it with a wad of other money and put it in his left pocket.   Appellant wore a black glove on his right hand.   Appellant put his hands together, took something from his hand with thumb and forefinger, and handed it to the man with the backpack.   Based on his training and experience, Martin saw this exchange as consistent with a drug transaction, and he relayed this information to Arnold.   Arnold and Sanchez approached appellant and detained and arrested him.   Appellant was “resisting,” and he would not open his left hand, but ultimately his hand was forced open and cocaine found.

Thus, the record supports the trial court's findings of fact and conclusions of law.   See Garcia–Cantu, 253 S.W.3d at 241;  Guzman, 955 S.W.2d at 89.   After corroborating the informant's tip in this case with independent police work, it was reasonable for the officers to believe that, because the informant was correct about appellant's time of arrival, his appearance, his vehicle, his black glove, and his apparent drug transaction, the informant was also right about appellant being in possession of drugs he was selling to drivers at the auction.  Alabama v. White, 496 U.S. 325, 330 (1990);  Illinois v. Gates, 462 U.S. 213, 243–44 (1983).   When various police officers have cooperated and communicated during an investigation, the court reviews the totality of the information individually known to them to determine whether the seizing officer had probable cause to detain.  Woodward v. State, 668 S.W.2d 337, 345 (Tex.Crim.App.1982).   With the information verified by Martin, the other officers had sufficient articulable facts to believe appellant was in possession of illegal drugs with intent to deliver.  White, 496 U.S. at 330;  Gates, 462 U.S. at 238–39;  Whaley, 686 S.W.2d at 951.   Once probable cause was established, appellant was properly searched incident to arrest.  McGee, 105 S.W.3d at 615.   Therefore, the trial court did not err in overruling appellant's motion to suppress.   See Garcia–Cantu, 253 S.W.3d at 241;  Guzman, 955 S.W.2d at 89.   We overrule appellant's third and fourth issues.

In his fifth, sixth, seventh, and eighth issues, appellant argues the evidence is legally and factually insufficient to show the weight of the controlled substance was four grams or more or to establish appellant had “intent to deliver” the controlled substance.   The Texas Court of Criminal Appeals held that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.   See Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.).   Therefore, we will address appellant's issues under the Jackson v. Virginia standard.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.   Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks, 323 S.W.3d at 895.   We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).

The State was required to prove beyond a reasonable doubt that appellant possessed with intent to deliver cocaine in an amount by aggregate weight, including any adulterants or dilutants, of four grams or more but less than 200 grams.   Here, Lopez testified the material appellant possessed was cocaine weighing 3.8 grams and had a total weight, including adulterants and dilutants, of 4.05 grams.   Carroll testified someone selling crack rocks would cut up the rocks into different sizes to “lower overhead.”   Carroll made undercover purchases and would expect to pay about $100 for a “big rock” and $10 or $20 for the smallest rocks in the evidence bag.   A typical single dose of crack consisted of “around a tenth of a gram” and sold for approximately $10.   The State had previously established that appellant was in possession of two $100 bills, nine $20 bills, nine $10 bills, and five $5 bills, for a total of $495.   Carroll testified that, if he observed someone engaging in what appeared to be hand-to-hand drug transactions and subsequently found crack and the denominations of money appellant possessed, he would conclude the person “definitely possessed it with intent to deliver.”   We conclude this evidence was sufficient to establish appellant possessed with intent to deliver cocaine in an amount by aggregate weight, including any adulterants or dilutants, of four grams or more but less than 200 grams.   See Brooks, 323 S.W.3d at 895.   We overrule appellant's fifth, sixth, seventh, and eighth issues.

In his ninth issue, appellant argues the State failed to disclose exculpatory or favorable evidence.   Specifically, appellant complains a copy of a supplemental arrest report he obtained shows under “disposition” that he was released on the date of his arrest, while the district attorney's copy of a supplemental arrest report showed appellant was “in jail.”   Appellant argues “the State's copy had been altered to suppress the information about the disposition.”   We disagree.

Appellant was required to show that (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith;  (2) the withheld evidence is favorable to him;  and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.  Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2002) (citing Brady v. Maryland 373 U.S. 83, 87 (1963)).   Under Brady, appellant bears the burden of showing that, in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure.  Hampton, 86 S.W.3d at 612.  “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”  Id. at 612 (quoting United States v. Agurs, 427 U.S. 97, 109 (1976)).   Here, whether or not appellant was released or “in jail” on the day of his arrest was not relevant to the issue of whether he possessed cocaine with intent to deliver.   Thus, we conclude appellant has not met his burden of showing it was reasonably probable that the outcome of the trial would have been different if the prosecutor had emphasized this apparently clerical error.   See Hampton, 86 S.W.3d at 612.   We overrule appellant's ninth issue.

In his tenth issue, appellant argues the trial court committed fundamental error by commenting on the State's case or the evidence.   In his eleventh issue, appellant argues the prosecutor commented on his failure to testify.   Specifically, appellant claims the trial court stated “I believe the State put on a compelling case” in the presence of the jury, and the prosecutor stated during closing argument that “He did not tell us about working on Thursday.”   However, appellant has not provided a citation to the record supporting either claim.   Accordingly, appellant has waived our review of these issues.   See Tex.R.App. P. 38.1(i).   Further, our review of the record reveals that the word “compelling” does not appear in the reporter's record, and we can find no evidence of the statement appellant claims the prosecutor made.   We overrule appellant's tenth and eleventh issues.

In his twelfth issue, appellant claims the trial court abused its discretion in denying his motion for new trial.   Specifically, he argues the judgment in this case is void because all filings in this case were directed to the 203 rd District Court, but “Auxiliary Court # 1 called a drug court” rendered judgment but “lacked jurisdiction to do so.”   This Court has previously explained that names of, or directions or references to, places such as “Auxiliary Court # 7, Dallas County, Texas,” are nothing more than courtroom place designations where disposition of the various matters in cases pending in the lawfully constituted district courts of Dallas County are made.  Borders v. State, 822 S.W.2d 661, 663 (Tex.App.—Dallas 1991), reversed on other grounds, 846 S.W.2d 834 (Tex.Crim.App.1992).   Thus, the trial court did not err in denying appellant's motion for new trial grounded on the assertion that an asserted “court” named the “auxiliary court/drug court” heard appellant's trial.   See id.   Further, to the extent appellant mentions a claim, raised at the motion for new trial hearing, that he was denied a speedy trial, appellant makes no citation to the record or authority to support this statement and therefore has waived our review of this issue.   See Tex.R.App. P. 38.1(i).   We overrule appellant's twelfth issue.

In his thirteenth and fourteenth issues, appellant argues the trial court (1) violated his due process rights by denying his request to retest the weight of the controlled substance and (2) erred in denying appellant's request to perform additional testing on the controlled substance.   Appellant's request to retest and reweigh the cocaine came on the second day of trial, after the jury was selected, the court had considered and ruled on appellant's pretrial motions, and Lopez was testifying that the amount of cocaine she tested was four grams or more but less than 200 grams.   Appellant's request was therefore untimely.  Scott v. State, 825 S.W.2d 521, 524 (Tex.App.—Dallas 1992, pet. ref'd) (motion filed a few minutes before pretrial hearing on discovery and requesting independent chemical analysis of “alleged narcotics” was untimely).

Further, appellant's written motion to retest the cocaine in this case described the cocaine as “13 rock cocaine from two different batches” and two different colors.   Appellant requested retesting of “at least two from each batch” if not all “13 rock cocaine.”   As authority, appellant cited Gabriel v. State, 900 S.W.2d 721 (Tex.Crim.App.1995).   In Gabriel, the court addressed whether the evidence was sufficient to show appellant possessed cocaine in an amount greater than 28 grams where only 2.237 grams in five of fifty-four baggies containing the substance were scientifically tested.  Id. at 721.   The court concluded this evidence was sufficient.  Id. However, we fail to see how Gabriel is relevant here.   The State in this case was required to prove appellant possessed cocaine with intent to deliver in an amount of four grams or more but less than 200 grams.   As we have already concluded, the evidence was sufficient to show appellant possessed at least four grams of cocaine.   The testing of any other substances in this case was unnecessary.   We overrule appellant's thirteenth and fourteenth issues.

In his fifteenth issue, appellant complains the trial court denied him “a fair chance to present a motion for continuance,” but he presents no argument to support this issue and therefore has waived our review of this issue.   See Tex.R.App. P. 38.1(i).

In his sixteenth and seventeenth issues, appellant complains he was “denied the issue of whether the jury improperly considered parole” in determining his sentence, and his sentence was the result of jury misconduct because the jury considered parole in determining his sentence.   Specifically, appellant complains, as he did at the hearing on his motion for new trial, that a bailiff “came out and showed [him] some questions that came from the jury,” including how long appellant had been in the penitentiary and how old he was.   In response to questioning from the trial court, appellant confirmed that his complaint was the jury was improperly considering parole law.   However, the record contains no such note from the jury.   At the hearing on a motion for new trial, the trial court is the trier of fact and the sole judge of the witnesses' credibility.  Melton v. State, 987 S.W.2d 72, 75 (Tex.App.—Dallas 1998, no pet.) (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995)).   Because there was nothing in the record to support appellant's testimony concerning a note, the trial court was free to disbelieve this testimony and overrule his motion for new trial.   See id.

Further, there is no evidence the jury improperly considered parole law.   The code of criminal procedure sets forth the parole instruction to be given in certain cases, including murder cases.  Tex.Code Crim. Proc. Ann. art. 37.07 § 4 (West Supp.2010).   The jury charge in this case correctly set out the parole instruction, including the instruction's references to good conduct time, as set forth in article 37.07.   Neither appellant nor the State raised any objection to the court's parole instruction, and appellant points to no evidence that the jury was actually confused by the parole instruction.   See Luquis v. State, 72 S.W.3d 355, 366–67 (Tex.Crim.App.2002) (assuming jury followed parole instruction as given and declining to find federal constitutional error absent conclusion reasonable jury actually confused by charge).   Accordingly, appellant has failed to demonstrate the jury improperly considered the parole instruction in this case.   See id.   We overrule appellant's sixteenth and seventeenth issues.

In his eighteenth issue, appellant argues he received ineffective assistance of counsel at the pretrial stage of trial.   Specifically, appellant complains that different lawyers representing him at the pretrial stage before he decided to represent himself failed to “show up,” failed to urge the motions and pro se pleadings appellant was filing by himself, and did not seek out and interview potential witnesses.   We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984).   Mallett v. State, 65 S.W.3d 59, 62–63 (Tex.Crim.App.2001).   To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different.  Strickland, 466 U.S. at 687–88, 694.   The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance.  Thompson v. State, 9 S.W.3d 808, 813–14 (Tex.Crim.DP⌑The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance.  Mallett, 65 S.W.3d at 63.   When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable.  Id. In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.  Id. Here, the record is silent as to why appellant's counsel did not “show up” at certain times, urge the motions and pro se pleadings appellant was filing by himself, or seek out and interview potential witnesses.   Accordingly, on this record, we conclude appellant has not met his burden to show his counsel provided ineffective assistance.   See id.   We overrule appellant's eighteenth issue.

In his nineteenth issue, appellant argues he was “denied right of confrontation as to the evidence of internal affair public records of subpoenaed police officers.”   Appellant notes the trial court overruled his request to view subpoenaed internal affairs material on the investigating officers in this case, Arnold, Martin, and Sanchez, and sealed the documents.   Appellant requests this Court unseal the documents, review their contents for impeachment value, and reverse and remand this case if we find they contain “any possible impeachment evidence,” citing O'Rarden v. State, 777 S.W.2d 455 (Tex.App.—Dallas 1989, pet. ref'd) (reversing on basis there was probability sufficient to undermine confidence in outcome of trial that, had prosecution timely disclosed favorable evidence, result of proceeding would have been different).

The record shows the trial court reviewed the internal affairs records at issue and concluded there was nothing in the records “relevant to anything in this case that would entitle [appellant] to receive these IAD records.”   We have reviewed the sealed records, and we agree there is nothing in the records of any “impeachment value” relevant to this case.   Accordingly, the trial court's action in sealing the records did not deprive appellant of any favorable evidence.   See id.   We overrule appellant's nineteenth issue.

In his twentieth issue, appellant argues he was denied due process when the trial court permitted the State to reopen its evidence at punishment and present evidence relevant to a pen packet used to prove the enhancement allegations.   A trial court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.  Tex.Code Crim. Proc. Ann. Art. 36.02 (West 2007).   The decision whether to reopen the evidence is left to the sound discretion of the trial court.  Smith v. State, 290 S.W.3d 368, 373 (Tex.App.—Houston [14 th Dist.] 2009, pet. ref'd).   A trial judge is required to reopen a case under article 36.02 if the proffered evidence is “necessary to a due administration of justice.”  Peek v. State, 106 S.W.3d 72, 79 (Tex.Crim.App.2003).   A “due administration of justice” means a judge should reopen the case if the evidence would materially change the case in the proponent's favor.  Id.

Here, during the punishment phase, the State's offered appellant's pen packet in a prior aggravated robbery conviction for enhancement purposes.   Appellant pled not true.   The State elicited testimony that the fingerprints in the pen packet matched appellant's, and appellant did not object to the admission of the pen packet.   However, after the pen packet was admitted into evidence and the State rested, appellant objected that the pen packet showed the case had an appeal still pending, and the conviction was not final.   The State asked to reopen its case in chief, and the trial court granted leave.   The State then introduced a certified copy of a record showing appellant's prior conviction had been appealed, but the appeal was denied and the original sentence was affirmed.   Thus, the record shows the State's request to reopen the evidence came before argument was concluded, and the evidence materially changed the case in the State's favor by showing appellant's aggravated robbery conviction was final.   See id.   Under these circumstances, we conclude the trial court did not abuse its discretion in reopening the evidence.   See id.;  Smith, 290 S.W.3d at 373.   We overrule appellant's twentieth issue.

We affirm the trial court's judgment.

DAVID L. BRIDGES JUSTICE

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