BRANDON ANTOINE BEDFORD v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

BRANDON ANTOINE BEDFORD, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–11–00805–CR

Decided: June 20, 2012

Before Justices O'Neill, Richter, and Lang–Miers

OPINION

Opinion By Justice Lang–Miers

A jury convicted appellant Brandon Antoine Bedford of two counts of delivery of a controlled substance and one count of possession with intent to deliver a controlled substance.   Appellant pleaded true to an enhancement paragraph and was sentenced by the jury to ten years in prison in each of the delivery cases and thirty years in prison in the possession case.   In two issues on appeal appellant argues that he received ineffective assistance of counsel.   We resolve appellant's issues against him and affirm.

Background

The State's undisputed evidence showed that appellant sold crack cocaine twice to an undercover police officer.   After the second sale police executed a search warrant on the apartment appellant said he lived in, and from which appellant was seen coming and going.   There were three people in the apartment when the police arrived:  appellant, a man named Brandon Reed, and Zinnah Fully, Reed's girlfriend.   The police found drugs and drug paraphernalia in the apartment, including over six grams of crack cocaine, a digital scale with cocaine residue, and various drug-sized baggies.   The police also found a loaded Ruger 9mm semi-automatic pistol, a cell phone containing a photograph of appellant holding a Ruger 9mm semi-automatic pistol, and a hoodie with several items in its hood and pockets:  drug-sized baggies, an extended 9mm magazine, and pill bottles with appellant's name on it.   Narcotics Detective Stephen Junker testified that drug dealers often keep drugs in their apartment but sell them elsewhere.   He also explained that guns “go hand in hand with drugs” and the protection of a drug dealer's business.

No defense witnesses were called, but appellant's counsel cross-examined the State's witnesses and challenged their testimony and credibility.   During closing argument appellant's counsel noted that appellant and Reed looked alike, and suggested to the jury that Reed could have sold the drugs to the undercover officer and used appellant's identification.   Appellant's counsel also suggested that appellant was not in possession of the drugs found at the apartment because his name was not on the apartment lease and there was no evidence that he was receiving mail at that address.

Issues on Appeal

In two issues argued together on appeal appellant complains that he received ineffective assistance of counsel because his trial counsel (1) allowed a witness to comment on appellant's post-arrest silence, and (2) “opened the door to hearsay” that affirmatively linked appellant to the apartment.   In response, the State argues, in part, that appellant has failed to meet his burden of proving that his trial counsel provided constitutionally ineffective assistance.   The State contends that the record is not sufficient to support the conclusion that appellant's counsel's performance was deficient.

We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex.Crim.App.1986).   To obtain reversal based on ineffective assistance of counsel, an appellant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different.   See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005).   Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.   See Williams v. State, 301 S.W.3d 675, 687 (Tex.Crim.App.2009);  Andrews, 159 S.W.3d at 101.

An appellate court's review of counsel's performance is highly deferential and begins with the assumption that counsel's conduct fell within the wide range of reasonable professional assistance.   See Andrews, 159 S.W.3d at 101.   An ineffective assistance claim must be “firmly founded in the record,” and the record must affirmatively demonstrate that the claim has merit.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).

Because a silent record provides no explanation for counsel's actions, the record on direct appeal is usually not sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional.  Cannon v. State, 252 S.W.3d 342, 349 (Tex.Crim.App.2008);  Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003).   Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent.  Rylander, 101 S.W.3d at 111;  Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002).   Consequently, the Texas Court of Criminal Appeals has repeatedly explained that an application for writ of habeas corpus is usually the more appropriate vehicle to raise claims of ineffective assistance of counsel.   See, e.g., Rylander, 101 S.W.3d at 110.

Appellant filed a motion for new trial, but he did not raise ineffective assistance in the motion.   Consequently, the record is silent as to the reasons for counsel's actions.   Appellant argues, however, that this is one of those rare cases in which a record on direct appeal is sufficient for an appellate court to make a decision on the merits.   See Cannon, 252 S.W.3d at 349–50.   We disagree.

The complaint about the comment on appellant's post-arrest silence arises from the following exchange during the cross-examination of Paul Tong, the undercover officer who bought drugs from appellant and later participated in executing the search warrant on the apartment:

[Appellant's counsel]:  Anyone identify the hoodie as belonging to [appellant]?

[Tong]:  I think Fully said it belonged to [appellant].

[Appellant's counsel]:  All we have is her word as far as who owned the jacket?

[Tong]:  I don't believe the other defendants wanted to speak with us and we didn't ask.

The complaint about the hearsay testimony linking appellant to the apartment arises from the following exchanges during Tong's testimony:

[Appellant's counsel]:  Has it been determined who was on the apartment lease for the apartment searched?

[Tong]:  I don't believe I was able to obtain a lease, but from the interview that we have with Zinnah Fully, I believe she was the lessee of the apartment.

[Appellant's counsel]:  How did you come to the conclusion that [appellant] was living in the living room?

[Tong]:  Officer Reeves told me that [appellant], when he stopped on traffic [sic], said he was living there with Reed and Fully, and we did an interview with Fully.   She stated her and Reed shared the back bedroom and he was living in the front, the living room.

[Appellant's counsel]:  I think it's established the girl lived in the apartment, Reed lived in the apartment.   All sorts of evidence that establishes that and it was theirs.   Was there anything that indicated the apartment was [appellant's] or he was anything other than a visitor?

[Tong]:  Other than his pill bottles in the jacket in the closet, and Fully's statements that he was living there, and his statement to the officer he lived there.   I didn't find any other documents.   He wasn't paying the electric bill or receiv[ing] cell phone bills there, that we found evidence of.

Based on the totality of this record, we cannot conclude that appellant has established that his trial counsel's performance fell below an objective standard of reasonableness.   The actions appellant complains about appear to be two isolated instances during an otherwise satisfactory representation.   The court of criminal appeals has warned against declaring counsel constitutionally ineffective under these circumstances:

An appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions—whether those actions were of strategic design or the result of negligent conduct.

Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999).   We conclude that appellant has not satisfied the first prong of Strickland.   See Freeman v. State, 125 S.W.3d 505, 506–07 (Tex.Crim.App.2003) (“The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim.”).   As a result, we resolve appellant's two issues against him.

Conclusion

We resolve appellant's two issues against him and affirm.

ELIZABETH LANG–MIERS

JUSTICE

Do Not Publish

Tex.R.App. P. 47

110805F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

BRANDON ANTOINE BEDFORD, Appellant

No. 05–11–00805–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 203rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–34347–P).

Opinion delivered by Justice Lang–Miers, Justices O'Neill and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 20, 2012.

/Elizabeth Lang–Miers/

ELIZABETH LANG–MIERS

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

BRANDON ANTOINE BEDFORD, Appellant

No. 05–11–00806–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 203rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–34348–P).

Opinion delivered by Justice Lang–Miers, Justices O'Neill and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 20, 2012.

/Elizabeth Lang–Miers/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

BRANDON ANTOINE BEDFORD, Appellant

No. 05–11–00807–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 203rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–34281–P).

Opinion delivered by Justice Lang–Miers, Justices O'Neill and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 20, 2012.

/Elizabeth Lang–Miers/

ELIZABETH LANG–MIERS

JUSTICE

ELIZABETH LANG–MIERS JUSTICE

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