Opinion issued December 13, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01–06–01007–CR
DARYL JEROME ROBINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1051591
MEMORANDUM OPINION
A jury convicted appellant, Daryl Jerome Robinson, of murder and assessed punishment at confinement for 40 years. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003).
In three points of error, appellant contends that the evidence is factually insufficient to support his conviction and that he received ineffective assistance of counsel.
We affirm.
Background
The complainant, Richard Lee, and his mother, Donna Lee, moved to Houston as part of the evacuation of New Orleans during Hurricane Katrina. Richard moved into a room at the Scottish Inn, and Donna moved into an apartment on the second floor of the Catalina Apartments. Richard often stayed with Donna. Appellant lived at the Scottish Inn and his cousin, Tonya, lived at the Catalina Apartments in an apartment below Donna. Appellant often stayed with Tonya.
On December 24, 2005, Richard’s sister, Shirley Lee, and her five children arrived in Houston from Jackson, Mississippi, to celebrate Christmas with Richard and Donna. At approximately 10:45 that evening, Donna and Shirley went to Wal-Mart for some last minute groceries. When they returned home and pulled into the parking lot, Shirley saw three men coming around the side of the apartment building and saw that one of them was carrying a gun. Donna recognized one of the men as her downstairs neighbor, appellant, and she recognized appellant’s cousin, Rodney, with the gun in his hand. Donna did not recognize the third man. In fear, Donna and Shirley stayed in the car.
A few minutes later, Tonya pulled into the parking lot next to Donna, got out of her car, and shouted at the men, “I told y’all about bringing this mother f—ing s— around my house.” Appellant took the gun from Rodney and the three men went into Tonya’s apartment.
Donna and Shirley got out of the car and went to Donna’s apartment upstairs. Richard, who was there watching Shirley’s children, then went downstairs to Tonya’s apartment, purchased marihuana from Rodney, and returned to Donna’s apartment at approximately 11:50 p.m.
Moments later, Donna’s sister-in-law, Shaunice, who also lived in the Catalina Apartments, called and talked with Richard. Shaunice had planned to celebrate Christmas at midnight with Donna’s family, and Richard told her to come on over.
A few minutes later, there was a loud knock on the side of Donna’s apartment. Shirley and Richard were in the living room and thought that Shaunice had arrived and was playing games. Richard opened the door and said, “Oh, we know it’s you. Come on in here. It’s Christmas.” Richard stepped outside the front door with Shirley on his heels.
Shirley immediately saw a gunman, whom she later identified as appellant, standing on the stairs. She saw him lift his gun and point it at Richard. She heard a noise she described as “chook, chook, boom” and saw a “big glow of fire [come] through the gun.” Shirley ran back into the apartment and Richard ran in behind her. Richard locked the door, yelled, “Get the children!” and fell to the floor choking on blood. Shirley could hear the gunman running down the metal stairs. Richard died from a gunshot wound to his thigh that damaged his femoral artery.
Officer B. Evans, a Houston Police Department homicide investigator, testified that he interviewed Shirley at the scene and that she told him that she saw the shooter and the gun. Shirley identified the shooter as someone who lived downstairs, whom she thought was named “Jermaine.” Evans testified that the name “Jermaine” is close to appellant’s middle name “Jerome” and that appellant had been named as the shooter by more than one person at the scene.
The third man that Donna and Shirley had seen when they returned from Wal-Mart that night was Rodney’s friend, Daniel Lewis. Daniel testified that, on the night of the incident, he was at Tonya’s apartment to celebrate Christmas. Daniel testified that appellant was there and that he had a shotgun. Daniel identified the shotgun in court as being similar to the one he saw appellant holding. Daniel testified that appellant was “pumped” and “acting all wild” that night and was walking in and out of the apartment. Daniel was outside with Rodney and appellant to shoot a round with the shotgun when Tonya pulled into the parking lot and began yelling at appellant about the gun. Daniel testified that Tonya threw appellant out of her apartment and that appellant left at approximately 11:30 p.m. Daniel testified that he did not see appellant leave with the shotgun, but that appellant left with a large white trash bag full of clothes. Daniel testified that, shortly before midnight, Richard came downstairs to Tonya’s apartment asking for marihuana, that Daniel gave marihuana to Rodney, and that Rodney stepped outside the apartment with Richard. Rodney came back inside and, about 10 minutes later, Daniel heard a single gunshot. Rodney and Daniel heard Donna screaming and ran upstairs to help.
Appellant testified at trial that he was not at Tonya’s apartment at the time of the shooting. Appellant testified that he had been living with Tonya, but that she had thrown him out for “cooking drugs” in the apartment while the children were there. Subsequently, appellant went to live with Courtney Clark, the mother of his children. Appellant stated that he went to Tonya’s apartment on December 24, but that he did not go inside. Appellant said that he left at 11:30 p.m. and went to Courtney’s apartment. Appellant testified that his cousin, Isaac, came to Courtney’s and picked him up at midnight and that they headed for Tonya’s apartment, but that the police were there and would not let them into the area. Appellant testified that he went back to Courtney’s apartment.
Appellant also testified that he does not own a gun or a car, but has, on occasion, borrowed Richard’s car for the purpose of dealing drugs. Appellant testified that he has been a drug dealer since 1998 and that none of his 75 to 100 customers are located in the area around Tonya’s apartment.
Appellant’s brother, Willie Sellers, testified that he had just come home from having been incarcerated and was living at Tonya’s apartment at the time of the incident. Willie testified that, on the evening of December 24, he and Tonya went to the store and arrived back at the apartment at approximately 10:45 p.m. Willie testified that appellant arrived at 11:00 p.m. to drop off Christmas gifts and that Tonya told appellant he could not stay. Willie and appellant went outside, and appellant said that Courtney was coming to get him. Willie went back inside Tonya’s apartment and, minutes later, he heard three gunshots, a second or so apart. He and Rodney heard someone screaming and Rodney ran upstairs. Willie walked to the store to get away from the chaos and saw his cousin Isaac. Willie testified that he and Isaac went to Courtney’s apartment and picked up appellant.
Courtney testified that she lives approximately five minutes from Catalina Apartments. Courtney said that she picked up appellant from Tonya’s apartment on December 23 because appellant had “gotten into it” with Tonya and that appellant stayed with her for “two or three nights.” Courtney also testified that she got off of work at 2:00 p.m. on December 24 and went to Tonya’s apartment because appellant was watching Courtney’s children there. Courtney testified that she stayed at Tonya’s apartment until 7:00 or 7:30 p.m. and that she, appellant, and the children then left and went back to Courtney’s apartment and that appellant stayed there all night. Courtney offered several additional versions of the facts that seemed to conflict.
Sufficiency of the Evidence
In his first point of error, appellant contends that the evidence is factually insufficient to support his conviction for the offense of murder. Specifically, appellant contends that Shirley’s testimony that appellant was the shooter was not “logical or supported by other record evidence.”
A. Standard of Review
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, 133 (Tex. Crim. App. 1996). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 10–11 (Tex. Crim. App. 2000). Under the first prong of Johnson, “[we] cannot conclude that a conviction is ‘clearly wrong’ or ‘manifestly unjust’ simply because, on the quantum of evidence admitted, we would have voted to acquit had [we] been on the jury.” Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.
When conducting a factual sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). The fact-finder alone determines what weight to give contradictory testimonial evidence because that question depends on how the fact-finder evaluates credibility and demeanor. Cain, 958 S.W.2d at 408–09. As the determinor of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.
A person commits murder if, inter alia, he “intentionally or knowingly causes the death of an individual” or he “intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” Tex. Pen. Code Ann. § 19.02(b)(1)–(2). A firearm is, per se, a deadly weapon. Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2007). When a deadly weapon is used and death results, the inference of an intent to kill is almost conclusive. Flanagan v. State, 675 S.W.2d 734, 745 n.9 (Tex. Crim. App. 1982).
B. Analysis
The State offered evidence of the commission of a murder by appellant. Donna testified that, when she and Shirley returned from Wal-Mart, she saw appellant, Rodney, and a third person, later identified as Daniel, outside the apartments and saw that Rodney had a gun. Shirley testified that, as she and Donna waited in the car, Donna identified appellant and Rodney by name. Donna and Shirley testified that Tonya pulled into the parking lot, got out of the car, and shouted at the men about having the shotgun. Donna and Shirley testified that they saw appellant take the gun from Rodney.
Daniel testified that appellant had been “acting wild” that night and that appellant and Rodney went outside to shoot some rounds. Daniel was outside Tonya’s apartment with Rodney and appellant when Tonya pulled into the parking lot and began yelling at appellant about having the gun. Daniel identified the shotgun in court as being similar to the one he saw appellant holding.
Daniel testified that Tonya threw appellant out of her house that night because of the shotgun and that appellant left at approximately 11:30 p.m. Daniel testified that appellant had a large white trash bag full of items when he left. Donna, Shirley, and Daniel testified that Richard was downstairs at Tonya’s apartment purchasing drugs from Rodney at some point between 11:30 and 11:50 p.m.
The evidence shows that, approximately 10 minutes after Richard returned to Donna’s apartment upstairs, a knock was heard on the side of Donna’s apartment. When Shirley started to follow Richard outside the front door of Donna’s apartment, Shirley immediately saw appellant standing on the stairs. Shirley recognized appellant from having seen him earlier that evening when she and Donna returned from Wal-Mart. Shirley saw appellant lift his gun and point it at Richard. Shirley identified the shotgun shown at trial as being the same as the one she saw appellant holding. Shirley heard a noise she described as “chook, chook, boom” and saw a “big glow of fire [come] through the gun.” Shirley testified that she ran back into the apartment and Richard ran in behind her. Richard locked the door, yelled, “Get the children!” and fell to the floor choking. The evidence shows that Richard died from a gunshot wound to his thigh that damaged his femoral artery.
The record shows that Shirley positively identified appellant as the shooter to Officer Evans at the scene immediately after the shooting, then later identified appellant within seconds from a photo-spread, then identified him again in the courtroom during trial. Officer Evans also testified, without objection, that appellant was named as the shooter by more than one person at the scene.
Appellant complains that Shirley’s testimony was “the only direct evidence of [his] guilt.” Appellant seems to contend that Shirley’s testimony, without more, is insufficient to implicate appellant in the murder. However, a positive identification of the defendant as the perpetrator is factually sufficient to support a conviction if the jury reasonably believes the witness. See Goodman v. State, 66 S.W.3d 283, 286–87 (Tex. Crim. App. 2001); Moore v. State, 446 S.W.2d 877, 878 (Tex. Crim. App. 1969).
In addition, appellant contends that Shirley’s testimony is insufficient because it is not “logical.” Specifically, appellant contends that Shirley could not have seen the shooter from where she alleges she was standing at the time of the shooting. Shirley testified that the lower half of her body was in the doorway of Donna’s apartment and that the upper half of her body was extended outside the door. Appellant contends that, because he is over six feet tall and Richard was only five-feet-four-inches tall, and the evidence shows that Richard was shot straight through the thigh, without any upward trajectory, appellant would have to have been standing down the stairs at a level below Richard. Appellant contends that Shirley could not have seen him from her vantage point.
The record shows, however, that Shirley was directly behind Richard when they started out the door of Donna’s apartment and that Richard was shot from less than four feet away. Shirley testified that she saw appellant raise the shotgun and saw “fire” come out of the gun. From this evidence, the jury could have reasonably concluded that Shirley saw appellant shoot Richard.
Further, appellant contends that he presented evidence of an alibi. The record shows that, in contrast to the State’s evidence, appellant presented testimonial evidence that he was at Courtney’s apartment, and not at Tonya’s, at the time of the shooting. Willie testified that appellant came over to Tonya’s apartment at 11:00 p.m. on December 24th to drop off Christmas gifts to the children and that Tonya told appellant that he could not stay. Willie testified that he and appellant went outside and that appellant stated that Courtney was coming to get him. According to his testimony, Willie then went back inside Tonya’s apartment. Appellant testified that he left Tonya’s apartment at 11:30 p.m. and went to Courtney’s apartment. However, from this evidence, the jury could have reasonably concluded that appellant was still outside of Tonya’s apartment when Richard came downstairs to buy marihuana from Rodney.
Willie testified that minutes after he went back inside Tonya’s apartment, he heard three gunshots, a second or so apart. Willie further testified that, after the shooting, he walked to the store, where he ran into Isaac. Willie testified that he and Isaac went to Courtney’s apartment at approximately 12:15 a.m. and appellant was there. The evidence shows, however, that Courtney lived only five minutes away from Donna’s apartment.
Courtney initially testified that, on December 24th, she was at work until 2:00 p.m., that she then met up with appellant and her children at Tonya’s apartment, and that she, appellant, and the children left there at 7:00 or 7:30 p.m. Courtney testified that when they left, they went to Courtney’s apartment and appellant stayed with her all night. However, Courtney later testified inconsistently concerning appellant’s whereabouts and the time frame. Courtney also testified that she had been shopping on December 24th and did not pick up appellant until 11:00 and 11:30 p.m. that night. Courtney subsequently testified that she picked up appellant from Tonya’s apartment on December 24th at “[a]round 9:00, 9:30.” She then testified that “[i]t was like, maybe, like, 9:45, 10:15.” Courtney first testified that appellant stayed at the apartment all night, then later testified that appellant left her apartment that night at “approximately, maybe, like, 12:15” a.m., when his cousin came to get him. Courtney also testified that appellant spent the evening of December 24th helping her get her children “ready for school the next day.” When asked if her children went to school on Christmas Day, Courtney first responded that the children had indeed gone to daycare, then she responded that she had been referring to December 24th. Courtney had previously testified that appellant kept her children at Tonya’s on the 24th.
The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the witnesses’ testimony. Cain, 958 S.W.2d at 407 n.5; Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Cain, 958 S.W.2d at 407 & n.4; McKinny v. State, 76 S.W.3d 463, 468–69 (Tex. App.—Houston [1st Dist.] 2002, no pet.). In this case, the jury made the determination that Shirley’s testimony was credible. After reviewing all of the evidence in a neutral light, we cannot conclude that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We hold that the evidence is factually sufficient to support appellant’s conviction.
Accordingly, we overrule appellant’s first point of error.
Assistance of Counsel
In his second and third points of error, appellant contends that he was denied his Sixth Amendment right to effective counsel. In his second point of error, appellant contends that his trial counsel improperly elicited testimony from appellant concerning inadmissible prior criminal convictions. In his third point of error, appellant contends that his trial counsel “failed to object to hearsay evidence that impeached testimony of Courtney Clark’s alibi testimony.”
A. Standard of Review
Appellant was entitled to reasonably effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove ineffective assistance of counsel, appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). “Reasonable probability” means a “probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068.
To prevail, appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson, 187 S.W.3d at 482–83; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
As the reviewing court, we consider the totality of the representation. Robertson, 187 S.W.3d at 483. Isolated instances of errors of commission or omission will not render counsel’s performance ineffective. Id. We consider the adequacy of assistance as viewed at the time of trial, not through hindsight. Id.
Allegations of ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 833 & n. 13 (Tex. Crim. App. 2002). Generally, the record on appeal is undeveloped, and a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. Rylander, 101 S.W.3d at 110–11.
B. Prior Convictions
In his second point of error, appellant contends that his trial counsel was ineffective because, during examination of appellant concerning his prior convictions, counsel “inartfully” and improperly included prior convictions that were inadmissible under Rule 609(a). Specifically, appellant complains that his trial counsel elicited testimony from him concerning his conviction, in year 2000, for possession of a controlled substance and his convictions, in 2003, for possession of marihuana, evading detention, and driving while intoxicated. Appellant contends that he was harmed by the introduction of these offenses because credibility was critical in the case, the testimony of his alibi witness, Courtney, “was fraught with confusion over dates and time,” and “the complained-of additional convictions only made . . . appellant less credible.”
Rule of Evidence 609(a), which governs the admissibility of prior convictions, provides as follows:
(a) General Rule: For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
Tex. R. Evid. 609(a).
Applying rule 609(a), the complained-of convictions, which the record shows were misdemeanors and which did not involve moral turpitude, were not admissible. See Tex. R. Evid. 609(a); Denman v. State, 193 S.W.3d 129, 135 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (concluding that drug trafficking is not crime of moral turpitude); Moore v. State, 143 S.W.3d 305, 314 (Tex. App.—Waco 2004, pet. ref’d) (concluding that driving while intoxicated is not crime of moral turpitude); see also Dominguez v. State, 07-02-0264-CR, 2003 WL 834778, at *2 (Tex. App.—Amarillo Mar. 4, 2003, pet. ref’d) (mem. op., not designated for publication) (concluding that evading arrest is not crime of moral turpitude).
However, appellant has not shown that there is a reasonable probability that, but for his counsel having permitted the jury to hear the inadmissible evidence of these convictions, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Andrews, 159 S.W.3d at 102. As to the complained-of testimony concerning appellant’s misdemeanor convictions for drug possession, the record also shows that appellant testified to having had five prior felony convictions for delivery and possession of a controlled substance. In addition, appellant testified that he is a drug dealer, that he maintains 75 to 100 customers, and
that he cooks crack cocaine in the presence of children.
As to the complained-of testimony concerning appellant’s misdemeanor convictions for driving while intoxicated and evading arrest, which are not crimes involving moral turpitude, appellant also testified that he was convicted of having assaulted his ex-girlfriend Courtney. Misdemeanor assault of a female is a crime of moral turpitude. See Jackson v. State, 50 S.W.3d 579, 592 (Tex. App.—Fort Worth 2001, pet. ref’d) (considering misdemeanor assault of female victim by male); Hardeman v. State, 868 S.W.2d 404, 405–06 (Tex. App.—Austin 1992, pet. dism’d) (holding that conviction for misdemeanor assault by man against woman is crime involving moral turpitude and admissible as impeaching evidence under rule 609). Hence, appellant has not shown that his credibility was prejudiced by the introduction of the misdemeanor offenses.
The record shows that the evidence of the misdemeanor convictions was not developed by the State on cross-examination of appellant or raised in the State’s closing argument. Further, the trial court instructed the jury not to consider appellant’s prior convictions as evidence of his guilt. We must presume that the jury followed the trial court’s instructions. See Wesbrook v. State, 29 S.W.3d 103, 115–16 (Tex. Crim. App. 2000).
When, as here, appellant fails to meet the prejudice prong, we need not address the question of counsel’s performance on these points. See Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991). The failure to make a showing under either of the required prongs of Strickland defeats a claim for ineffective assistance of counsel. Rylander, 101 S.W.3d at 110–11. We conclude that appellant has not met his burden to show ineffective assistance of counsel by a preponderance of the evidence.
Accordingly, appellant’s second point of error is overruled.
C. Failure to Object to Hearsay In his third point of error, appellant contends that he was denied effective assistance of counsel because his trial counsel failed to object to hearsay testimony. Specifically, appellant complains of the following colloquy that took place during the State’s examination of Officer M. Sosa of the Houston Police Department:
[State]: And did you interview . . . somebody named Courtney Clark?
[Sosa]: Yes, I had an occasion to talk with her.
[State]: And what did she have to say?
[Sosa]: Basically there was nothing that she could assist with the case, with the investigation.
[State]: Did she say she knew anything?
[Defense]: Objection. Asked and answered.
[Court]: Sustained.
Appellant contends that Officer Sosa’s testimony “clearly constitutes hearsay” and that appellant’s trial counsel’s failure to object on that basis constitutes ineffective assistance of counsel. However, appellant also acknowledges that “Sosa’s summary hearsay statement was vague and indefinite as to exactly what [Courtney] may have said and what was consistent, or inconsistent, in her testimony.”
Hearsay is “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d) (emphasis added). Hearsay statements are inadmissible except as provided by statute or other rule. Tex. R. Evid. 802; see Tex.R. Evid. 803 (providing exceptions). An extrajudicial statement that is offered for the purpose of showing what was said rather than for proving the truth of the matter stated therein, does not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Gonzales v. State, 190 S.W.3d 125, 133–34 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
Here, as appellant acknowledges, Officer Sosa did not testify regarding any statement that was allegedly made by Courtney. Thus, Sosa’s testimony did not constitute hearsay. See Tex. R. Evid. 801(d). As such, appellant’s trial counsel was not ineffective for failing to object on that basis.
Accordingly, we overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).