AT AUSTIN
NO. 3-93-507-CR
GARY M. RICHTER,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 0931630, HONORABLE LARRY FULLER, JUDGE PRESIDING
PER CURIAM
The district court found appellant guilty of aggravated robbery and assessed punishment, enhanced, at imprisonment for forty years. Tex. Penal Code Ann. § 29.03 (West Supp. 1994). The sole point of error on appeal is appellant's contention that he did not receive effective representation of counsel at trial.
Anthony Satsky testified that appellant was visiting him in his apartment on the afternoon in question. Appellant was acting strangely, so Satsky kept an eye on him. Satsky saw appellant take a loaded pistol belonging to Satsky from under the kitchen sink and leave the apartment. Satsky pursued appellant to the latter's pickup truck. Appellant got into the truck and locked the doors. Satsky broke a door window and reached inside, but retreated when appellant pointed the pistol at him.
In his own testimony, appellant admitted stealing the pistol but denied pointing it at Satsky. A second defense witness, Ora Tanksley, testified that she was in the pickup with appellant. She corroborated appellant's assertion that he did not point the pistol at Satsky.
Appellant asserts that trial counsel made a "single but devastating error" when he failed to argue that appellant's conduct could reasonably be interpreted as a theft followed by an act of self-defense. Relying on appellant's testimony, defense counsel urged the court to convict appellant of the lesser included offense of theft. The court instead found appellant guilty of aggravated robbery as alleged, remarking, "The Court would be more likely to believe that he pointed the gun out of fear for his own life after the complaining witness or the victim knocked the windows out of the car. But he is taking the position that is not true, that he never pointed the gun at anybody."
As this statement demonstrates, the district court was fully aware of the alternative theory of culpability now advanced by appellant. The court did not reject this theory because defense counsel failed to urge it, but because appellant's own testimony refuted it. We find no basis for concluding that trial counsel's representation was ineffective. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The point of error is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Aboussie and Jones
Affirmed
Filed: April 6, 1994
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