Opinion issued July 2, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00727-CR
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ALPHONSO SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case No. 71088
MEMORANDUM OPINION
Appellant, Alphonso Smith, was charged by indictment with evading arrest,1
enhanced by a prior conviction for aggravated robbery. 2 Appellant pleaded not
1
See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B) (Vernon Supp. 2014).
guilty to the offense and not true to the enhancement. The jury found Appellant
guilty, found the enhancement to be true, and assessed punishment at 13 years’
confinement. In three issues, Appellant argues (1) the evidence was insufficient to
establish he was the person who committed the offense, (2) the evidence was
insufficient to support the assessment of attorneys’ fees against him, and (3) he
received ineffective assistance of counsel.
We modify the judgment and affirm the judgment as modified.
Background
On July 5, 2013, Officer N. Ross, of the Freeport Police Department, was on
patrol. While driving, he saw a car making a left-hand turn at an intersection with
a stop sign. The car did not come to a complete stop. Officer Ross made eye
contact with the person in the car as the person drove through the intersection.
Officer Ross turned around on the street and began to follow the car. The driver
began speeding, and Officer Ross pursued. Eventually, the driver crashed.
Appellant got out of the car, and Officer Ross arrested him.
Before trial, the State amended its indictment against Appellant to include an
enhancement paragraph, alleging Appellant had previously been convicted of
aggravated robbery. Appellant filed a motion to quash the enhancement paragraph,
2
See TEX. PENAL CODE ANN. § 12.35(c)(2)(A) (Vernon Supp. 2014); TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 3g(a)(1)(F) (Vernon 2006).
2
alleging that the prior conviction was void. After a hearing a trial, the trial court
denied the motion.
During the guilt-innocence phase of the trial, the prosecutor asked Officer
Ross if he saw “the individual . . . in that vehicle that night.” Officer Ross testified
that he made eye contact with him. Later the prosecutor asked Officer Ross if the
“individual who got out of that car that evening” was in the courtroom. Officer
Ross said yes, identifying Appellant.
Before trial, the trial court determined that Appellant was indigent.
Following trial, the trial court rendered a judgment of conviction against Appellant.
The judgment of conviction assessed attorney’s fees against Appellant. The trial
court also appointed appellate counsel, due to Appellant’s indigence.
Sufficiency of the Evidence
In his first issue, Appellant argues the evidence was insufficient to establish
he was the person who committed the offense. In his third issue, Appellant argues
the evidence was insufficient to support the assessment of attorneys’ fees against
him.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
3
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). An appellate court presumes that the fact finder resolved any conflicts in
4
the evidence in favor of the verdict and defers to that resolution, provided that the
resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing
the record, direct and circumstantial evidence are treated equally; circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235
S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence
can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.
See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
B. Identity of Appellant
Appellant argues that none of the evidence at trial establishes that he was the
person who perpetrated the crime. To establish this gap in the State’s burden,
Appellant relies principally on the following exchange between Officer Ross and
the prosecutor:
Q. . . . Now, Officer Ross, the individual who got out of that car
that evening --
A. Yes, sir.
Q. -- do you recognize him in the courtroom today?
A. Yes, I do.
Q. And could you indicate where he is sitting and an article of
clothing that he is wearing, just point him out?
A. Yes. He’s seated right there wearing that gray long-sleeved
shirt.
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[The prosecutor]: Your Honor, may the record reflect that the witness
has correctly identified the defendant in open court?
THE COURT: The record will so reflect.
Appellant argues that, while Officer Ross identified him as “the individual
who got out of that car that evening,” Officer Ross never identified him as the
driver of the car. Accordingly, Appellant argues, the evidence is insufficient to
establish he committed the offense of evading arrest with a motor vehicle. We
disagree.
Officer Ross testified that “the individual” got out of the car. This means
only one person got out of the car. See THE NEW OXFORD AMERICAN DICTIONARY
860 (2d ed. 2005) (defining “individual” as “a single human being as distinct from
a group, class, or family”). As Appellant acknowledges, Officer Ross testified a
short time earlier that, while the car was moving, he saw “the individual . . . in the
vehicle that night.” This evidence indicates that only one person was in the car in
question and that the one person was Appellant.
Likewise, the trial court admitted into evidence the dash-cam video of the
pursuit and arrest. After the driver is arrested, the video continues for over 13
minutes. The video shows that Officer Ross holstered his weapon after the driver
was arrested, indicating no further safety risk remained. The video also shows
police officers searching the car. Throughout the video, no other person leaves the
car.
6
Finally, as the State points out, Officer Ross also testified that he believed
“the defendant” was trying to flee and that he was attempting to detain “the
defendant” that evening. We hold the jury could rely on all of this evidence to
conclude that the person committing the offense of evading arrest was Appellant.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (holding jury is responsible for
making reasonable inferences and reviewing courts must defer to such reasonable
inferences).
We overrule Appellant’s first issue.
C. Assessment of Attorneys’ Fees
Before trial, the trial court determined that Appellant was indigent. “A
defendant who is determined by the court to be indigent is presumed to remain
indigent for the remainder of the proceedings in the case unless a material change
in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN.
art. 26.04(p) (Vernon 2009). In order to assess attorneys’ fees against a defendant,
the trial court must “determine[] that a defendant has financial resources that
enable him to offset in part or in whole the costs of the legal services provided.”
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (Vernon 2009). An assessment of court
costs in the judgment is reviewed for the sufficiency of the evidence supporting a
determination that the defendant has the necessary financial resources. Mayer v.
State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).
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The State concedes and we agree that there is no evidence in the record
suggesting that Appellant was no longer indigent or otherwise indicating that he
had the financial resources to enable him to pay his attorneys’ fees. Accordingly,
we sustain Appellant’s third issue.
Ineffective Assistance of Counsel
In his second issue, Appellant argues he received ineffective assistance of
counsel because his attorney failed to sufficiently prove that the judgment used to
enhance his sentence was void.
A. Standard of Review
The Sixth Amendment to the United States Constitution guarantees the right
to reasonably effective assistance of counsel in criminal prosecutions. See U.S.
CONST. amend. VI. To show ineffective assistance of counsel, a defendant must
demonstrate both (1) that his counsel’s performance fell below an objective
standard of reasonableness and (2) that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052,
2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (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.
8
An appellant bears the burden of proving by a preponderance of the
evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded
in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Id. at 814. We presume that a counsel’s conduct falls within the
wide range of reasonable professional assistance, and we will find a counsel’s
performance deficient only if the conduct is so outrageous that no competent
attorney would have engaged in it. Andrews, 159 S.W.3d at 101. When an
appellant argues that his counsel rendered ineffective assistance by failing to make
an objection, he must show that the trial court would have erred in overruling the
objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); Jacoby
v. State, 227 S.W.3d 128, 131 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
“In making an assessment of effective assistance of counsel, an appellate
court must review the totality of the representation and the circumstances of each
case without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.
Crim. App. 2011). Demonstrating ineffective assistance of counsel on direct
appeal is “a difficult hurdle to overcome.” Id. In order to establish it, “the record
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could justify
trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.
9
B. Analysis
Before trial in this case, Appellant’s trial counsel filed a motion to quash the
enhancement paragraph in the indictment, claiming that the judgment from the
enhancing offense was void. The indictment alleged that Appellant had previously
been convicted of aggravated robbery, referring to an earlier case with the case
number 22,623. Appellant’s counsel argued that case number 22,623 had been
enhanced by an even earlier conviction, identified as case number 14,608. He
argued that the conviction in case number 14,608 was void due to the conviction
being obtained in violation of Appellant’s right to be represented by counsel. See
Ex parte Flores, 537 S.W.2d 458, 459 (Tex. Crim. App. 1976) (holding judgment
was void for conviction following revocation hearing when defendant was denied
right to representation). By extension, Appellant argues the conviction in case
number 22,623 was void. Based on his claim that the conviction in case number
22,623 was void, Appellant’s counsel argued that the State could not rely on it to
enhance the charges against Appellant in the underlying case. See Henderson v.
State, 552 S.W.2d 464, 466 (Tex. Crim. App. 1977) (reversing conviction
enhanced by void prior conviction).
Appellant acknowledges on appeal that, “in order to show that a conviction
is void for denial of counsel, a defendant has the burden to show he was indigent,
was not afforded counsel and did not voluntarily waive his right to counsel.”
10
Appellant asserts that his trial attorney “made no attempt to offer support for his
motion apart from the motion itself, the attachments to the motion and his
argument.” Appellant asserts that he was present at the hearing, but his trial
counsel failed to call him to testify about the original void judgment. Appellant
claims that his attorney’s “failure to support that, which on its face, appears to be a
valid motion to quash the enhancement paragraph with readily available evidence,
namely, the record and his client, constitutes ineffective assistance of counsel.”
Based on the current record, it remains unproven that the judgment of
conviction in case number 14,608 is, in fact, void. Any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814.
To show ineffective assistance of counsel, a defendant must demonstrate that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068; Andrews, 159 S.W.3d at 102. Without evidence that the conviction in
case number 14,608 is void, there is no proof that such evidence would have
produced a different result in the proceeding. See Ex parte White, 160 S.W.3d 46,
52 (Tex. Crim. App. 2004) (“To obtain relief on an ineffective assistance of
counsel claim based on an uncalled witness, the applicant must show . . . [the
witness’s] testimony would have been of some benefit to the defense.”).
11
We overrule Appellant’s second issue.
Conclusion
We modify the trial court’s judgment, removing the assessment of attorneys’
fees against Appellant. We affirm the judgment as modified.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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Alphonso Smith v. State
Combined Opinion