Opinion issued June 24, 2010
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-08-00934-CR & 01-08-00935-CR
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Jeremiah Addon Curry, Appellant
V.
The State of Texas, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1122699 & 1165117
MEMORANDUM OPINION
A jury convicted appellant, Jeremiah Addon Curry, of two charges[1] of aggravated robbery.[2] The jury assessed punishment at 25 years’ imprisonment and a fine of $5,000 for one offense and 40 years’ imprisonment and a fine of $10,000 for the other offense, both sentences to run concurrently. In three issues, appellant argues: (1) that the evidence was legally insufficient to establish his guilt; (2) that the evidence was factually insufficient to establish his guilt; and (3) that he was denied effective assistance of counsel.
We affirm.
BACKGROUND
On the night of June 25, 2007, the complainants, Lakisha Roberts and Antoinette Breed, who had lived together for four years, were in their apartment in Baytown, Texas with Roberts’ ten-year-old son Kailen Arceneau, Roberts’ two- year-old god-daughter Daniesha, and Lakeisha Brown, Roberts’ niece.[3] The complainants and Kailen were in one bedroom watching a movie, Daniesha was in the other bedroom asleep, and Brown was in the living room watching television. Between midnight and 1:00 a.m., there was a “loud knock” at their door. After hesitating, Roberts went to the door. The door did not have a peephole, but a person on the other side of the door identified himself as “Mike.” Roberts opened the door and almost immediately thereafter was struck with the handle of a gun. Five people—three men and two women—burst into the apartment and ordered everyone to be quiet and to get on the floor. The intruders wore black bandanas over their faces, but Roberts and Kailen recognized one of them as their next door neighbor, Isaiah Thomas. Appellant entered the bedroom where Breed and Kailen remained, pointed a gun at Breed, and ordered them into the living room.
The intruders used duct tape to restrain, to silence, and to blindfold the complainants. After the complainants were restrained and silenced, the intruders beat them. Kailen, who remained on a couch during the entire event, was unrestrained and not blindfolded.
After the complainants were restrained and silenced, appellant and his accomplices began to search the apartment. As they did so, Roberts and Breed heard Thomas address appellant by his first name, Jeremiah, and they heard appellant reply. Roberts then heard appellant speak with Kailen. Later, during the robbery, Roberts heard appellant report that Roberts’ god-daughter, two-year-old Daniesha, was still asleep. Breed heard appellant ask where the complainants had hidden their guns and money. After remaining in the apartment for twenty or thirty minutes, appellant and his accomplices prepared to leave. Before they left, Breed and Roberts heard appellant state that they should take a waterfall picture from the wall. In addition to the waterfall picture, appellant and his accomplices took a flat-screen television, keys, a DVD player, a VCR, a PlayStation 2 game console, cellular phones, jewelry, and children’s clothing. As he left the apartment, appellant threatened the complainants, stating, “You better not call the police because if you call the police we will be back for you.”
After appellant and his accomplices had left the apartment, Roberts and Breed freed themselves, closed the apartment door, and found an old cell phone. Breed dialed 911 from the bedroom. Although the cell phone continually disconnected from emergency services, the police were dispatched to the complainants’ apartment.
When the police officers arrived at the complainants’ apartment, Breed identified two of the intruders, Derrick Tillis and Isaiah Thomas, by name.[4] After speaking with the officers, Roberts discovered that her new car had been scratched severely and its four tires punctured. Between 30 minutes and an hour after the officers arrived at the complainants’ apartment, the police officers transported the two complainants, Kailen, Daniesha, and Brown to the police station for formal statements. There, Roberts and Breed related the details of the robbery and then identified appellant as one of the robbers.
The police officers interviewed the complainants separately for approximately an hour. During the interview, Breed told S. Latta, the interviewing detective, that appellant had been among those who had robbed her and that appellant had “put a gun in [her] face.” The detective showed Breed a photo spread, from which she identified Tillis as one of the men who had robbed her. Both complainants later identified appellant in a photo lineup. The State obtained two indictments against appellant, one for the armed robbery of Lakisha Roberts and one for the armed robbery of Antoinette Breed. The indictments both alleged that appellant used or exhibited a handgun during the commission of the theft. The cases were tried together.
At trial, the State called eleven witnesses, and the defense called appellant, who testified briefly outside the presence of the jury as to whether he had committed a prior offense.
Roberts testified that late in the evening she was watching television with Breed, Kailen, and Lakeisha, when they heard a knock on the door from someone who identified himself as “Mike.” She opened the door and something hit her across her right eye. Someone told her, “Shut the f___ up and get down on the ground.” She recognized Thomas as the person who struck her, whereupon he struck her again. Although his face was covered by a black bandana, she could still see his eyes and hair. When Roberts got down on the floor, Thomas duct-taped her hands behind her back and duct-taped her eyes. As she lay on the floor, she recognized the voices of Tillis and appellant and hearing Isaiah ask appellant, “Hey, Jeremiah, do you want to take the computer?” Appellant said that it would be too complicated to unhook everything, and it was not taken. Roberts was afraid for her life.
Roberts testified that appellant and Thomas were brothers and both had been living in the apartment next door to the complainants with Laura Fernandez, Thomas’s girlfriend, until Fernandez was evicted a few days before the robbery.[5] Thomas, Tillis, and appellant were still living there at the time of the robbery. She knew appellant through Thomas, and prior to the robbery she had spoken to appellant five or six times. She also testified that, in the days before the robbery, she had purchased a new Ford Escape. Her previous car had been destroyed in an accident shortly before the robbery, and her insurance company paid her $3,000. She had told Thomas and appellant before the robbery that she had a new car and that she had received money from her insurance company.
Breed testified that she heard the commotion and came into the living room and that appellant shoved a gun into her face and told her to “get on the living room floor.” She recognized appellant, whom she knew through Thomas, “[b]ecause of his even fade [hair style] and thick eyelashes.” Her blindfold did not cover one of her eyes, and she observed the entire robbery. She saw Isaiah and appellant walk into her bedroom. She also heard Thomas address appellant by his first name, Jeremiah; she heard appellant respond to Thomas’s use of his name, and she heard appellant ask where the money and guns were hidden. When appellant returned to the living room, he hit her in the head twice with the butt of his pistol.
Kailen testified that he was not blindfolded and that he recognized Thomas because Thomas lived in the apartment next door.
Brown likewise testified to the details of the crime. She testified that she saw Roberts get hit on the head and fall to the floor. She heard the name “Isaiah” called out. She was then duct-taped. She could not identify any individuals. She testified that all of the male intruders carried guns, but that the women did not. She was “stomped on the head” by one of the females.
Officer W. Pentecoste, a police officer who responded to the complainants’ emergency call, testified that, in his brief conversation with the complainants, he asked them about the gender, race, and general physical descriptions of the robbers and radioed this information to officers on patrol.
Officer M. Burdick of the Houston Police Department testified that, on February 13, 2008, he attempted to stop appellant because the motorcycle that appellant was riding was without a front light, but appellant did not stop. Eventually, appellant stopped the motorcycle, dropped it on its side, and fled on foot. Appellant was located hiding in a closet in a house nearby. Officer Burdick eventually arrested appellant for an outstanding warrant for armed robbery and also charged him with evading arrest.
The jury convicted appellant on both charges of armed robbery. At the punishment phase, a witness testified for the State that appellant had committed an extraneous aggravated robbery on May 2, 2004, by stealing the witness’s dirt bike while Isaiah Thomas wielded a gun. The jury assessed punishment at 40 years’ imprisonment for the robbery of Breed and 25 years’ imprisonment for the robbery of Roberts. Appellant did not file a motion for a new trial. This appeal followed.
ANALYSIS
I. Legal and Factual Sufficiency of the Evidence
In his first and second issues, appellant contends that the evidence was legally and factually insufficient to sustain the verdict against him. Specifically, appellant challenges the legal and factual sufficiency of the State’s evidence to prove his identity as the robber because, he contends, the complainants had only limited interaction with him before the robbery, there was nothing distinctive about his voice, and, while his brother used his first name, Jeremiah, during the robbery, there was no last name used. In addition, he contends that the evidence was factually insufficient because there was no other evidence such as “DNA, weapon, fingerprint, telephone call, or co-conspirator confession” to tie him to the crime.
A. Standard of Review
In a legal-sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight given to the testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). A jury is entitled to accept one version of the facts and to reject another, or to reject any part of a witness’s testimony. Id. In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (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, 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 evidence before us, 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 determining 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. The jury is in the best position to evaluate the credibility of witnesses, and we are required in our factual-sufficiency review to afford “due deference” to the jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. Analysis
Appellant was charged with the aggravated robberies of Roberts and Breed. The elements of aggravated robbery that must be proved are that a person committed a robbery and that he caused serious bodily injury, used or exhibited a deadly weapon, or placed another person in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.03 (Vernon 2003).
The identity of the person committing the offense is an element of the crime that must be proved. See Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that identity is element of offense and that it may be proven by direct or circumstantial evidence). Courts have found voice identification alone to be legally and factually sufficient to establish the identity of the perpetrator of a crime. McInturf v. State, 544 S.W.2d 417, 418–19 (Tex. Crim. App. 1976) (holding that voice identification constituted direct evidence of identity when complainant had one 30 minute encounter with appellant); Davis v. State, 180 S.W.3d 277, 286 (Tex. App.—Texarkana 2005, no pet.) (holding that complainant’s voice identification of appellant was legally and factually sufficient to support conviction when complainant had one 15 minute encounter with appellant).[6] Sight identification, likewise, may be both legally and factually sufficient to establish identity. Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding eye-witness identification was factually-sufficient to support conviction when complainant saw appellant only on night that he robbed her, but she testified that she recognized him by his eyes); Walker v. State, 180 S.W.3d 829, 832–33 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding identification by only one eye-witness was legally and factually sufficient to support conviction when the appellant robbed complainant at gunpoint and robbery lasted less than one minute).
The complainants testified that they recognized appellant’s voice during the robbery, that during the 20 to 30 minutes the intruders were in the apartment appellant spoke several times, that in the weeks preceding the robbery they had spoken with appellant numerous times, and that they had last spoken with him “a couple of days” before the robbery. Breed and Roberts also testified that they heard Thomas, whom they knew to be appellant’s brother, address appellant by his first name, Jeremiah, and that they heard appellant reply to his brother.
In addition to the voice identification, Breed testified that she recognized appellant by his haircut and eyelashes. Breed recognized appellant when he came to get her out of the bedroom at gunpoint and moved her to the living room, where he restrained and blindfolded her. Because her blindfold covered only one eye, Breed watched as appellant robbed her apartment and then walked over and struck her on the head with a gun. Breed and Roberts later identified appellant in a photo lineup that the police presented to them, as well as in court.
We conclude that, viewing the evidence in the light most favorable to the verdict, a rational jury could have found that appellant committed the crimes of aggravated robbery with which he was charged. See Evans, 202 S.W.3d at 161. We further conclude that, viewed neutrally, the evidence is not so weak as to render the verdict clearly wrong and manifestly unjust and the judgment is not against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We hold that Breed’s and Roberts’ identification of appellant as one of the robbers is both legally and factually sufficient to support his conviction for armed robbery.
We overrule appellant’s first and second issues.
INEFFECTIVE ASSISTANCE
In his third issue, appellant argues that he was denied the effective assistance of counsel during both the guilt-and-innocence and the punishment phases of his trial. Appellant contends that he received ineffective assistance due to his counsel’s courtroom behavior, the way that counsel examined witnesses, and his decision to call appellant’s sister. He contends that appellant’s counsel “antagonized both the Judge and Jury” with “needless and incorrect objections,” “engaged in a dialogue that needlessly aggravated the court before the jury,” and “opened the door to a state’s witness[’s] opportunity to recite extraneous offenses” by asking Officer Burdick, who arrested appellant, “a thoughtlessly open-ended question.” Appellant further claims his counsel was ineffective at the punishment stage by making “frivolous objections” to incriminating audio tapes played by the State, by calling appellant’s sister to the stand, since she had been on the motorcycle when appellant turned it over and fled and was pinned under it, and by making improper sidebar statements in closing arguments.
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, an appellant must show that his trial counsel’s performance was deficient and that a reasonable probability exists that, but for the deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The first prong of the Strickland test requires that the defendant show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). This does not require a showing that counsel’s representation was without error. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Nor do isolated errors render counsel’s performance ineffective. Id. “When handed the task of determining the validity of a defendant’s claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813. The second prong of Strickland requires that the defendant show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. Because the reviewing court must indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. An appellate court must begin its review with a strong presumption that trial counsel’s actions fell within the wide range of reasonable representation and that the actions constituted sound trial strategy. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). A specific trial strategy may be deemed inadequate representation only if counsel’s actions are without any plausible basis. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).
Any allegation of ineffectiveness must be firmly founded in the record, which must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland, 928 S.W.2d at 500). We will not speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In rare cases, however, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). Such cases are limited to occasions when no reasonable attorney could have made such a decision. Weaver v. State, 265 S.W.3d 523, 538 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).
B. Analysis
Appellant complains about incidents in the record that reflect unfavorably on his counsel. However, he fails to acknowledge that his counsel vigorously defended him throughout the trial, and he omits to state how the result of his trial would have been different but for his counsel’s conduct.
Appellant’s counsel conducted a proper voir dire in which he stated his intention to zealously represent his client, he told the venire of his client’s right to not testify, and he questioned the panel members on their ability to presume appellant’s innocence. During trial he cross-examined all of the State’s witnesses, made numerous objections that the trial court granted, attacked the complainants’ testimony, and, during his closing, attacked the credibility of the State’s witnesses. At the punishment stage, he kept out expert testimony on appellant’s gang affiliation and presented witnesses on appellant’s behalf who, testified that appellant had small children and a family that cared about him.
We conclude that appellant has failed to overcome the presumption that trial counsel had a plausible reason for his actions or to establish that no reasonable attorney could have made the complained of decisions. See Thompson, 9 S.W.3d at 814; McFarland, 928 S.W.2d at 500. Moreover, even if appellant had established the first prong of Strickland by showing that his attorney’s performance fell below the minimal standard of ordinary care required, he still has not shown that, but for his counsel’s errors, the result of the trial would have been different, as required to satisfy the second prong of Strickland. See Strickland, 466 US at 687, 694, 104 S. Ct. at 2064, 2068.
Appellant directs this Court to three cases in an effort to establish that counsel’s behavior constituted ineffective assistance of counsel. See Miller v. State, 728 S.W.2d 133 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d); Hutchinson v. State, 663 S.W.2d 610 (Tex. App.—Houston [1st Dist.], 1983, pet. ref’d); Ex parte Guzman, 730 S.W.2d 724 (Tex. Crim. App. 1987). Each of these cases is distinguishable.
In Miller, defense counsel was abusive throughout the trial. See 728 S.W.2d at 134. He openly antagonized a member of the jury panel by accusing him of attempting to avoid jury duty and repeatedly asked prospective jurors if he was making anyone mad. Id. at 134–35. The court of appeals held that defense counsel’s aggressive voir dire “could not have constituted trial strategy.” Id. at 134. During the trial, defense counsel ascribed bizarre and racist motivations to the witnesses and referred to his client in derogatory and racist terms. See id. at 135. The trial court held that counsel’s strategy was not reasonable but was “calculated to damage [his client’s] cause” and that these and other errors gave rise to a probability that, absent counsel’s errors, the result of the trial would have been different. Id. In Guzman, the Court of Criminal Appeals likewise held defense counsel’s representation deficient. 730 S.W.2d at 733. The court found that defense counsel’s inability to communicate with the appellant through an interpreter placed him in a “poor position” to challenge the prosecution. Guzman, 730 S.W.2d at 733–34. The court also found defense counsel ineffective because, he berated his client throughout the trial and referred to him in pejorative terms. Id. at 725–27, 730–31. In Hutchinson, trial counsel presented no evidence on his client’s behalf, and he continually opened the door for the State to present extraneous offenses, despite the trial court’s interventions and attempts to protect the defendant’s rights. 663 S.W.2d at 613–14. Moreover, defense counsel made no investigation of the facts of the case, and he “showed a gross lack of knowledge and skill in voir dire examination.” Id. at 614.
These cases are clearly distinguishable from the instant case, in which appellant’s counsel investigated the case, called witnesses on appellant’s behalf, and otherwise vigorously defended his client’s rights. A criminal defendant is not entitled to error-free counsel, but only to counsel whose actions fall within the wide range of reasonable representation. See Robinson, 187 S.W.3d at 483.
We overrule appellant’s third issue.
CONCLUSION
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Appellant was indicted for the robbery of Lakisha Roberts in trial court cause number 1122699, appellate cause number 01-08-00934-CR, and for the robbery of Antoinette Breed in trial court cause number 1165117, appellate cause number 01-08-00935-CR.
[2] See Tex. Penal Code Ann. §§ 29.02–.03 (providing elements for aggravated robbery).
[3] Kailen lived with Brown and saw his mother Roberts only on the weekends. On the morning of June 15, 2007, Brown drove Kailen to the complainants’ apartment, where they spent the day. Both Brown and Kailen were present when the events that lead to this appeal occurred.
[4] Breed identified Tillis by his nickname, “Little D,” and Thomas by his first name, “Isaiah.”
[5] The apartment was rented to Laura Fernandez, but Thomas and appellant had been living there.
[6] See also Scott v. State, No. 01-06-00151-CR, 2007 WL 2264458, at *3 (Tex. App.—Houston [1st Dist.] Aug. 9, 2007, no pet.) (not designated for publication) (holding that voice identification and circumstantial evidence of the appellant’s identity are factually sufficient to support conviction); see also Chacon v. State, No. 14-07-00228-CR, 2008 WL 850130, at *4 (Tex. App.—Houston [14th Dist.] April 1, 2008, pet. ref’d) (not designated for publication) (holding that voice identification based on foreign accent was legally and factually sufficient to support conviction).