Opinion issued October 27, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00979-CR
HECTOR GILEBALDO RUIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 948465
MEMORANDUM OPINION
A jury convicted appellant, Hector Gilebaldo Ruiz, of theft of property of between $20,000 and $100,000 and assessed his punishment at six years in prison and a $10,000 fine. See TEX. PEN. CODE ANN. § 31.03(e)(5) (Vernon 2005). We determine whether the evidence was legally and factually sufficient to support appellant’s conviction for theft and whether appellant was denied effective assistance of counsel at the guilt-innocence phase of trial. We affirm.
Facts
The State presented the following evidence. The complainant, John Parker, owned five businesses, four of which were involved to varying extents in either the sale or financing of used vehicles, and one of which conducted business that was personal to Parker. In February 2001, Parker hired appellant to work as the manager of his automobile-dealership businesses.
Each time that a customer made a payment on a vehicle, the following procedure was followed: the paying customer was issued a receipt, and a copy of the receipt was retained; the payment was placed into a cash box; the payment was entered electronically onto the computer and manually onto the customer’s file; the total payments received at day’s end were placed into a safe; a cash-flow statement (“the daily report”), showing to which Parker business entities payments were to be attributed, was generated the next morning; the previous day’s payments were then deposited into the bank accounts of the appropriate Parker business entities; bank-deposit receipts were brought back and stapled to the daily report; and, at month’s end, a monthly report was generated, compiling all of the month’s daily reports. From January 2002 to February 2003, appellant was solely responsible for generating the daily report and for confirming that the previous day’s payments matched up with the daily report; he also deposited the money from the safe the day after it had been collected and generated the monthly reports. Although other employees could access the computer system, only appellant had the security clearance to delete payments from the daily report. Even Parker did not have this security clearance. Additionally, although other employees could access the cash box, only appellant and Parker could access the safe.
John Parker Motor’s internal accountant, Mary Beth Smith, noticed that Parker’s businesses were $2,000 short for the month of February 2003. Examining each month from January 2002 to February 2003, Smith discovered that funds were missing from other months, as well. In all, the missing funds totaled $53,621.35. She discovered that, although the daily reports always matched the daily bank-deposit receipts, some of the payments recorded in the monthly report did not appear in the daily reports. That is, it appeared that someone, in order to take cash undetected, had deleted some of the payment entries when the daily reports were generated and then had re-entered the deleted entries when the monthly report was generated.
After discovering the missing cash, Parker asked all of his employees to take a polygraph test. During his pre-polygraph meeting, appellant, who then no longer worked for Parker, admitted on a videotaped recording that he had used the scheme set out above to steal money from Parker, specifically mentioning the amounts of less than $10,000 and $300, respectively. Appellant never took the polygraph test.
In November 2003, appellant went to Parker’s office to try to “work this out” by making “some kind of payment, some kind of restitution.” When Parker informed appellant that appellant owed him over $50,000, appellant replied that he could not pay that much; however, appellant never denied that he had taken that sum. Moreover, despite making about $39,467 a year while employed by Parker, appellant admitted to having paid about $23,000 on his mortgage between September 2001 and February 2003, to having fully paid for a $12,905 car between March 2001 and October 2002, and to having paid about $6,600 on a truck between September 2002 and February 2003.
However, at trial, appellant denied having taken any money from Parker. He also testified that he had never deposited the money for John Parker Enterprises; that no bank account existed for that entity; that Parker handled all of that entity’s money after it was deposited in the safe; and that Parker would, from time to time, take up to $30,000 of that entity’s money to use at the racetrack or for personal matters. Appellant also asserted that, in August 2002, Parker had all employees, including appellant, hide records of John Parker Enterprises before an audit by the Internal Revenue Service (“I.R.S.”). Appellant claimed that, when he complained about this to Parker, Parker became upset and that, when appellant quit months later because of this alleged fraud, Parker began threatening him and his family. Appellant claimed that he confessed only because Parker had instructed him to do so and because he feared Parker’s retaliation. Appellant also testified that “every single employee” and Parker knew how to work the computer database; that everyone’s password followed the same simple formula; and that, sometimes, the computer system would be run all day on only one employee’s password.
Legal and Factual Sufficiency
In his first and second points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction.
A. Standard of Review
In a legal-sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1,7 (Tex. Crim. App. 2000). In reviewing a factual-sufficiency challenge, we ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The factual-sufficiency standard “acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Zuniga v. State, 144 S.W.3d 477, 485 (Tex. Crim. App. 2004). Under either type of sufficiency review, the appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The fact finder is entitled to believe all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
To prove theft as alleged in the indictment and as charged to the jury, the State had to prove that, pursuant to one scheme or a continuing course of conduct, appellant unlawfully appropriated, by acquiring or otherwise exercising control over, Parker’s property (specifically, cash money) having a value of $20,000 or more and less than $100,000 with the intent to deprive Parker of the property. See Tex. Pen. Code Ann. § 31.03(a), (e)(5).
B. Legal Sufficiency
In his first point of error, appellant contends that the evidence is legally insufficient to show that he committed theft, making the following arguments in support: (1) before Parker suspected appellant, Parker had fired another employee out of suspicion of that other employee’s having stolen the money; (2) Parker and other employees knew how to use the computer system and could access the cash box; (3) no one witnessed or videotaped appellant committing theft; (4) appellant confessed to having taken only under $10,000, not to having taken over $20,000; (5) appellant testified that Parker hid records from the I.R.S.; and (6) appellant theorized that Parker took the missing money for his personal use or for gambling.
These arguments do not consider the evidence in the required light for a legal-sufficiency review, which is in the light most favorable to the verdict. When viewed in the appropriate light, the evidence, detailed above, shows a scheme for siphoning off monies that eventually totaled over $50,000 and that only appellant could have carried out because only he could delete transactions from the computer system. Additionally, appellant confessed to having taken some of the money, and he never denied Parker’s accusation that he had taken over $50,000. The jury, when viewing this evidence, could rationally have concluded that appellant committed theft in the alleged amount. We thus hold that the evidence is legally sufficient to support the verdict.
We overrule appellant’s first point of error.
C. Factual Sufficiency
In his second point of error, appellant argues that the evidence showing guilt is against the great weight and preponderance of the evidence based on the following, contrary testimony to which appellant testified: (1) appellant was scared that Parker would do something to him because appellant “knew too much” about Parker’s business practices and his alleged I.R.S. fraud; (2) appellant denied having taken money from Parker; (3) appellant confessed to the polygraph examiner out of fear of Parker; (4) Parker had instructed appellant to confess to having taken $50,000, and appellant’s hesitance and his claiming to have taken a lesser amount in the videotaped recording indicates that his confession was false; (5) no stealing had ever occurred; (6) appellant was framed; and (7) Parker played a “constant ‘shell game’ with his assets,” which scheme he allegedly hid from the I.R.S.Much of appellant’s challenge rests on the credibility of his testimony and the alleged incredibility of the State’s witnesses. However, the Court of Criminal Appeals has instructed that, in conducting a factual-sufficiency review, “[t]he reviewing court should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). The jury may simply have disbelieved appellant’s evidence and believed that of the State, and we will not intrude on the jury’s role concerning credibility in these circumstances. Appellant invites this Court to disregard the general rule and to hold instead that “the State’s evidence . . . simply is not credible enough to sustain a conviction.” We decline to do so because, “[a]s an intermediate appellate court, we must follow binding precedent of the Court of Criminal Appeals.” McKinney v. State, Nos. 01-03-00565-CR, 01-03-00734-CR, 01-03-00735-CR, 2005 WL 327145, at *3 (Tex. App.—Houston [1st Dist.] Feb. 10, 2005, no pet.).
We hold that the evidence on which appellant relies does not so undermine the evidence supporting guilt as to render the verdict clearly wrong or manifestly unjust. Accordingly, we hold that the evidence is factually sufficient to support the verdict.
We overrule appellant’s second point of error.
Ineffective Assistance of Counsel
In his third point of error, appellant contends that he received ineffective assistance of counsel at the guilt-innocence phase of trial because his counsel (1) failed to object to the opinion of a lay witness, Mary Beth Smith, during cross-examination that appellant was guilty; (2) failed to ascertain, on cross-examination, whether Smith had violated “the rule”; and (3) bolstered, by his continued cross-examination, Smith’s harmful testimony.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772, 774 (Tex. Crim. App. 1999) (applying Strickland standard at punishment phase of non-capital trial). Appellant must show both that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel’s error or omission, the result of the proceedings would have been different, i.e., the error or omission was sufficient to undermine confidence in the proceeding’s outcome. Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. The constitutional right to counsel does not mean the right to errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813.
It is the defendant’s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Id. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Gamble, 916 S.W.2d at 93. However, “in the rare case” in which the record suffices “to prove that counsel’s performance was deficient” despite the record’s silence concerning counsel’s strategy, “an appellate court should obviously address the [ineffective-assistance] claim . . . .” Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).
Nothing in the record shows counsel’s reasons for committing the complained-of act and omissions, and appellant did not file a motion for a new trial, in which counsel’s reasons could have been developed on the record. Appellant has thus failed to overcome the presumption that counsel could have had acted pursuant to sound strategy. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Appellant contends that this is one of those “rare cases” in which a record silent as to counsel’s reasoning nonetheless reveals counsel’s deficiency. See Robinson, 16 S.W.3d at 813 n.7. We disagree. Counsel’s actions are not such that no reasonable trial strategy could explain them. Moreover, to the extent that appellant’s challenge concerns counsel’s failure to inquire, on cross-examination, whether Smith had violated the rule between the two days that she testified, the prosecutor expressly asked the witness, on re-direct examination, whether she had spoken with any other witnesses between the first and second times that she testified, and she testified that she had not. Accordingly, even if we could consider counsel deficient for this omission, no harm would flow from it.
We hold that appellant has not carried his burden of proving ineffective assistance of counsel.
We overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. See Tex. R. App. P. 47.2(b).