Opinion issued December 30, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00494-CR
ALBERT JAMES WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 923626
MEMORANDUM OPINION
Appellant, Albert James Washington, was convicted by a jury of aggravated robbery. After finding two enhancement paragraphs true, the jury assessed his punishment at 30 years’ confinement. We conclude that appellant has raised no arguable grounds for appeal, and we affirm his conviction.
Appellant’s court-appointed counsel filed a brief in which she concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), in that it comprises a complete evaluation of the record and addresses all possible grounds for appeal. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).
After an attorney files an Anders brief and the appellant is afforded an opportunity to respond, the court of appeals conducts its own investigation of the record to discover if there are arguable grounds for appeal. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
Appellant filed a pro se response in which he argues that (1) there was a fatal variance between the allegations in the indictment and the proof presented at trial; (2) the evidence was legally and factually insufficient to support his conviction for aggravated assault because the evidence does not prove the complainant feared imminent bodily injury or death; (3) the evidence is factually insufficient to establish that appellant exhibited and used a deadly weapon as required for aggravated assault; and (4) his trial counsel was ineffective. The State has filed a brief in which it contends that these points of error are without merit. Based on our review of the record, we agree with the State.
Background
The complainant, Jerrold Tipps, worked weekend nights at Kinfolks Bar-B-Q. Kinfolks owns two mobile kitchen trailers that travel to different locations in North Houston to sell barbecue to patrons entering and leaving clubs.
One Sunday morning in August 2002, the complainant and one of the owners of Kinfolks, Felicia Edmondson, were closing down their trailer around 6 a.m. The complainant was outside the trailer, turning off the generator, when appellant and another man approached him, carrying guns. A third man entered the trailer where Edmondson was cleaning. Appellant demanded that the complainant give him the money from the business. When the complainant told appellant that he did not have any money, appellant called him a liar and knocked him to the ground. While on the ground, the complainant stared at appellant’s face. Appellant told the complainant to look away, but the complainant refused. At this point, appellant started kicking the complainant in the face and shoulder, resulting in bruises and a fractured collar bone. Eventually, appellant searched the complainant’s pockets and discovered that he was carrying $700; appellant pocketed the money.
After discovering that the complainant did have money, appellant put his gun to the complainant’s head. The complainant closed his eyes and waited for appellant to pull the trigger. However, the other men and appellant, having gotten the money, ran away. The complainant got up from the ground, retrieved one of the handguns from the trailer, and chased after the robbers. The complainant shot at them, and the robbers returned fire. After the complainant emptied his gun, he returned to the trailer and retrieved another gun. The robbers ran down a residential street, jumped over a fence, and entered a wooded area. The complainant never found appellant or the other men.
The gun fight between the complainant and the robbers woke Marina Alcala. She looked out her window and saw a blue car parked on the street and two men running across a yard. Alcala went outside her house and heard a woman scream that she had been robbed. Alcala noticed that the car’s engine was running. Believing that the car was probably the get-away car for the men, she grabbed the keys and disabled the car’s tires. Police investigating the incident discovered inside the car a credit card, a check, and an envelope—all bearing appellant’s name. The car was later determined to be registered to appellant’s ex-wife. Police arrested appellant and charged him with aggravated robbery.
Discussion
Fear of Imminent Bodily Injury or Death
In his second and third points of error, appellant contends the evidence is legally and factually insufficient to support his conviction because the State did not prove that the complainant feared imminent bodily injury or death as required to prove aggravated robbery, the crime with which appellant was charged.
Legal Sufficiency
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King, 29 S.W.3d at 562.
A person commits robbery when, “in the course of committing theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” Tex. Pen. Code Ann. § 29.02 (Vernon 2003). A conviction for aggravated robbery requires that the State prove that the defendant committed a robbery and either “caused serious bodily injury to another,” “uses or exhibits a deadly weapon,” or “causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the person is: . . . 65 years of age or older; or . . . a disabled person.” Tex. Pen. Code Ann. § 29.03 (Vernon 2003).
Here, the complainant testified that appellant and another man approached him carrying semi-automatic handguns. Appellant and the other man demanded the complainant’s money, knocked him to the ground when he said he did not have any, kicked his head repeatedly when he would not stop looking at appellant’s face, searched his pockets, and took his keys and his money. The complainant further testified that appellant got upset at him for lying about not having any money. When appellant pointed a gun at his head, the complainant testified that he “just knew [he] was going to pull the trigger because I know he was upset.” The State asked the complainant if he was in fear of imminent bodily injury, and the complainant answered affirmatively. The State asked if he was in fear of death at that point; the complainant said, “Yes.”
Reviewing the evidence set forth above in the light most favorable to the verdict, we conclude that the complainant’s testimony was legally sufficient for a reasonable jury to infer beyond a reasonable doubt that he feared imminent bodily injury and death, as required to prove aggravated assault. See Patterson v. State, 639 S.W.2d 695, 696 (Tex. Crim. App. 1982) (holding that complainant’s testimony that she (1) believed appellant had a gun, (2) feared imminent bodily injury, and (3) felt threatened with physical harm was sufficient to show fear of imminent bodily injury).
We conclude that appellant’s second point of error is without merit and overrule it.
Factual Sufficiency
We begin the factual sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). Our evaluation may not intrude upon the fact finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407–08. We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481–82.
Appellant argues that the complainant did not comply with his demands. The complainant would not look away from appellant’s face when told to; he did not surrender his money when told to; and, after appellant and his fellow robbers left the crime scene, the complainant followed, exchanged gun fire, retrieved a second gun, and continued to give chase. Appellant points to these actions as proof that the complainant had no fear. The complainant testified that appellant kicked him repeatedly, placed a gun to his head, and took his money and that he feared imminent harm and death. Given its verdict the jury evidently believed that the compliant feared imminent bodily injury or death. We will not substitute our judgment for that of the fact finder. See Zuniga, 144 S.W.3d at 481–82. After examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Escamilla, 143 S.W.3d at 817.
We conclude that appellant’s third point of error is without merit and overrule it.
Exhibition of Deadly Weapon
In his fourth point of error, appellant argues that the evidence was factually insufficient to show that he used or exhibited a deadly weapon in the course of the robbery because neither a weapon nor bullet casings were found.
Proof that the defendant used a deadly weapon is an element of aggravated robbery. See Tex. Pen. Code Ann. § 29.03(a)(2). The complainant testified that appellant carried a gun, pressed a gun to his head, and eventually exchanged gun fire with him. A deadly weapon, as defined by the Penal Code, includes a firearm. Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon 2003). Neither the gun nor bullet casings is required to prove that a firearm was used during the course of a robbery. See Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App 1985) (holding that testimony that appellant exhibited or used gun is sufficient to support deadly weapon finding). We conclude that appellant’s fourth point of error is without merit and overrule it.
Variance
In his first point of error, appellant contends there is a variance between the indictment and the evidence presented at trial because the State did not prove that the complainant feared imminent bodily injury or death as charged in the indictment; instead, appellant argues that the complainant suffered actual bodily injury.
A variance occurs when there is a discrepancy between the allegations charged in an indictment and the proof presented at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). Generally, in such a case, the State has proved the defendant guilty of a crime, but proved it in a manner different from the manner charged in the indictment. Id. A variance will result in legal insufficiency of the evidence only if it is both material and prejudicial to the defendant’s substantial rights. Id. at 257.
The indictment in this case charged that appellant
unlawfully, while in the course of committing theft of property owned by [the complainant] and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[ed] [the complainant] in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to-wit: a firearm.
We have held that the evidence was legally and factually sufficient to prove that appellant committed aggravated robbery by intentionally and knowingly threatening the complainant and placing him in fear of imminent bodily injury or death and that he used a deadly weapon. We conclude that there was no variance between the charge and the proof at trial.
We conclude that appellant’s first point of error is without merit and overrule it.
Ineffective Assistance of Counsel
In his fifth point of error, appellant contends that his trial counsel was ineffective because(1) he failed to request a jury instruction for the lesser included offense of theft; (2) he “failed to have motions ruled upon”; (3) he failed to object to evidence showing that the complainant was actually injured; (4) he did not introduce cellular phone records; (5) he did not conduct an independent investigation; and (6) he did not subpoena material witnesses.
In reviewing an ineffective assistance of counsel claim, we evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim. App. 1999). First, the defendant must show that his counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. To prove this deficiency in representation, the defendant must demonstrate that his counsel’s performance deviated from prevailing professional norms. Id. 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 845 S.W.2d 824, 842–43 (Tex. Crim. App. 1992). Second, the defendant must show prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This requires the defendant to show that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id. 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. 466 U.S. at 694, 104 S. Ct. at 2068. The failure to satisfy one prong of the Strickland test negates a court’s need to consider the other. Id. 466 U.S. at 697, 104 S. Ct. at 2069.
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). We cannot speculate beyond the record provided. Rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. Young v. State, 991 S.W.2d 835, 837–38 (Tex. Crim. App. 1999). The appellant must overcome the presumption that his trial counsel’s strategy was sound and affirmatively demonstrate the alleged ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 814.
Appellant argues that his trial counsel should have objected when the State introduced evidence that did not comport with the conduct alleged in the indictment. Specifically, trial counsel failed to make “critical trial objections” regarding the introduction of evidence that showed the complainant suffered actual serious bodily injury rather than that he was threatened and placed in fear of imminent bodily injury or death. The contextual evidence admitted to prove appellant’s crime was clearly admissible because it placed the offense in its proper setting so that the jury could evaluate it. See Tex. R. Evid. 401, 402; Skillern v. State, 890 S.W.2d 849, 865 (Tex. App.—Austin 1994, pet. ref’d). Therefore, this contention fails to support an ineffective assistance claim.
Additionally, appellant questions his trial counsel’s strategy on several grounds. First, he contends that his trial counsel was ineffective for failing to obtain rulings on pretrial motions regarding “the criminal records of the State’s witnesses, production of prior written statements[,] motion for discovery of State’s witness list,[and] motion for discovery of grand jury transcripts.” Appellant contends these records would show that his attorney was not familiar with the facts of the case.
Second, appellant contends that his trial counsel should have presented cellular telephone records. He argues that these records would have supported appellant’s alibi, which was introduced by the testimony of Traci Mallory, appellant’s girlfriend, that appellant had locked his keys in his car on the night of the robbery, and that despite that fact, someone had stolen the car, and he had tried to locate it and report it stolen. The records, he argues, would show the exact time he placed a call to Mallory to pick him up because he had locked his own keys in the car. He also contends the records would show that several calls were placed to the Houston Tow Line and to the Houston Police Auto Theft Division in an attempt to locate his car and to report it stolen.
Third, appellant contends that his trial counsel should have requested a lesser included offense instruction. He argues that a conviction for theft of the complaint’s money was a “rational alternative” to the charged offense because the evidence raised doubts as to whether the complainant ever perceived fear and whether a firearm was used, as required to prove aggravated robbery.
Fourth, appellant argues that his trial counsel failed to conduct an independent investigation. He contends that an investigation would have discovered audio recordings of Mallory speaking to an officer with the Houston Police Department. Appellant argues that the conversation between Mallory and the police officer would have supported his stolen car defense by showing that he could not have used the car to commit the crime with which he was charged.
Fifth, appellant argues that his trial counsel should have subpoenaed material witnesses. He identifies a babysitter who was caring for his son on the night of the incident, but does not provide her name or an address. Appellant argues that the babysitter’s testimony would have established that he was not at the scene of the crime because he was picking up his son. He also identifies Dawn Wiltz, his ex-wife and the registered owner of his car. He contends that Wiltz’s testimony would have clarified how the car was reported stolen and who reported the car stolen.
Appellate review of a trial counsel’s representation is highly deferential; we presume that counsel’s actions fell within the wide range of professional and reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (citing Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). The record is silent as to appellant’s counsel’s strategy. To find that appellant has met his burden of overcoming the presumption that the challenged actions were sound trial strategy would, therefore, call for us to speculate, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
We overrule appellant’s fifth point of error as without merit.
Conclusion
We have carefully reviewed the record, counsel’s brief, appellant’s pro se response, and the State’s brief. We conclude that this appeal is frivolous, and that appellant has not identified an arguable ground on appeal.
Counsel has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).