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Opinion filed September 6, 2007
In The
Eleventh Court of Appeals
__________
No. 11-05-00305-CR
__________
HIAWATHA CAMERON, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th Judicial District Court
Brown County, Texas
Trial Court Cause No. CR17854
O P I N I O N
The jury convicted Hiawatha Cameron of theft and found the enhancement allegation to be true, and the trial court sentenced him to fifteen years confinement. Cameron challenges his conviction with five issues, contending that the evidence was legally and factually insufficient to establish that he was a party to any theft, that the evidence was legally and factually insufficient to establish that the value of the stolen items equaled or exceeded $500, and that his counsel was constitutionally ineffective. We affirm.
At about 7:45 p.m. one evening, three men, including Cameron, entered J.C. Penney and looked around. One of the men grabbed a handful of merchandise and fled. A J.C. Penney=s employee pursued him outside. He did not see the thief but did see a white car without any lights parked in the distance. Cameron and the third individual remained in the store. When the employee returned, he asked them why their friend had stolen merchandise. Neither responded, but Cameron=s associate said, AWe better hurry up and get out of here.@ The two left the store approximately five minutes after the theft occurred.
The store manager approached them as they were leaving and asked if she could talk to them. The men responded by running away. She followed them and saw a white Chrysler Sebring without lights. The Chrysler drove toward the men, and the manager heard someone say, AShe is right behind you.@ The Chrysler sped out of the parking lot and Cameron and his associate ran out of the parking lot and across a highway. Store personnel contacted the police, and at approximately 9:30 to 9:45 the police brought three suspects, including Cameron, to the store. The store manager identified Cameron, the individual who had run out of the store with him, and several items of clothing that belonged to the store. She testified that the total value of the stolen clothing was $572.
Early Police Officer Johnny Dale Brown was the arresting officer and was the officer who transported Cameron and his associate to J.C. Penney. Officer Brown=s car is equipped with an in-car camera. Officer Brown testified that he reviewed the tape of the incident and on several occasions could hear Cameron say, AI=ll take the case.@ On another occasion, Cameron said, AI will be the scapegoat. If I=ve got a record, why not let me take the case and let the other two cats go?@
The jury convicted Cameron of felony theft. Cameron does not dispute the sufficiency of the evidence to establish that clothing was stolen, but he does dispute the sufficiency of the evidence to establish that he was a party. Tex. Penal Code Ann. ' 7.02 (Vernon 2003) provides:
(a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
Proof that a person is a party to an offense may be established with circumstantial evidence that shows that the parties were acting together to accomplish their common purpose. See Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977). The agreement to accomplish a common purpose, if any, must be made before or contemporaneously with the criminal event; but, in determining whether one has participated in an offense, the court may examine the events occurring before, during, and after the commission of the offense. Miller v. State, 83 S.W.3d 308, 314 (Tex. App.CAustin 2002, pet. ref=d).
Cameron argues that the evidence is legally and factually insufficient because it merely shows that he was present and may have assisted the primary actor make a getaway. The jury, however, was also allowed to consider that Cameron refused to respond to store personnel, that he ran when the manager asked to speak to him, that a white car without lights was seen leaving the parking lot as Cameron and his associate were running away, that someone in the car said: AShe is right behind you@ as they ran, that Cameron was later found in a white car, that clothing with J.C. Penney=s ink tags was in the trunk, that he had removed the shirt he wore into the store, and that Cameron repeatedly offered to Atake the case@ while being transported.
In order to determine if the evidence is legally sufficient, we must review all of 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. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, we review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). Then, we determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Id. at 414‑15.
Viewed under either a legal sufficiency or factual sufficiency standard, the evidence is sufficient. Cameron=s behavior from the moment the primary actor took the clothing, until he was transported to jail, is inconsistent with that of an innocent person. Shortly after the theft, he was found in a car that matched one seen fleeing the scene without lights and that had J.C. Penney=s clothing B with the ink tags still attached B in the trunk. Finally, his statements in the police car are tantamount to an admission. Issues one and two are overruled.
Cameron next argues that the evidence is legally and factually insufficient to establish that the value of the stolen clothing equaled or exceeded $500. When the primary actor fled, store personnel could only see a red item in his possession. When Cameron was arrested, he and the items found in the trunk of his car were brought to J.C. Penney. Store personnel identified several items as store merchandise. These had J.C. Penney=s ink tags and included jeans, Polo sweatshirts, and Cowboys jerseys. The store manager personally stocked the Polo sweatshirts earlier that day and immediately after the theft noticed two blank spots in the Polo display. She did not notice any jeans or Cowboys jerseys missing at that time and agreed that they could have been stolen at a different time. But after Cameron was brought to the store, she checked the jeans and Cowboys merchandise displays and saw that there were places from which that merchandise could have been taken.
Cameron argues that the evidence does not establish when all of the items were taken or from which store. Because there was no evidence that he assisted with any other theft, the evidence was legally and factually insufficient to establish that he participated in the theft of merchandise worth at least $500. The store manager agreed that there were no codes on the ink tags to distinguish from which J.C. Penney=s store the clothing was taken, but she testified that she was familiar with her store=s inventory, that there was no doubt in her mind that the items she claimed were in fact items for sale in her store that day, and that the items with J.C. Penney=s ink tags belonged to her store. She testified that the police also brought other merchandise which she did not claim because she did not carry that merchandise in her store. This evidence is legally and factually sufficient. Cameron=s criticism of the manager=s testimony goes to her credibility. Under both the legal and factual sufficiency standards of review, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses= testimony. Jaggers v. State, 125 S.W.3d 661, 670 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). The jury may believe all, some, or none of any witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). This standard of review applies to both direct and circumstantial evidence cases. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). The jury obviously accepted the manager=s testimony. Because that testimony established that over $500 worth of merchandise was taken from her store, issues three and four are overruled.
Finally, Cameron argues that his trial counsel was constitutionally ineffective for not objecting to the following: evidence of more than two prior theft convictions, the admission of the tape from Officer Brown=s car, and the prosecution=s closing argument. In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984). The analysis for ineffective assistance of counsel is undertaken in light of the Atotality of the representation@ rather than by examining isolated acts or omissions of trial counsel. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004). The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. Id. Under most circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision‑making as to overcome the strong presumption that counsel=s conduct was reasonable and professional. Id. at 510.
Cameron concedes that the admission of two prior theft convictions was proper because it is a jurisdictional precedent for a felony theft charge, but he contends that counsel should have objected to State=s Exhibit No. 17 because it referenced five other convictions. The indictment alleged that Cameron had been previously convicted of theft in 1998 and 2004 in Lubbock County. The indictment also included a state jail felony enhancement paragraph, which alleged that Cameron had been previously convicted of burglary and possession of a controlled substance. Counsel filed a motion in limine in which he objected to evidence of prior convictions, and he asserted this same objection in a pretrial hearing. The trial court allowed the State to present evidence of the two prior theft convictions but ordered the State to avoid the state jail felony enhancement allegation during the guilt/innocence phase. The trial court also indicated that if counsel intended to object to evidence of the prior theft convictions, that he would have to do so before the jury.
State=s Exhibit No. 17 is the indictment, plea, and judgment from the 2004 conviction. This exhibit was introduced through a fingerprint expert who compared Cameron=s fingerprints with those on the 2004 conviction and testified that they were from the same individual. The State=s witness indicated that the 2004 and 1998 convictions were for theft, but did not elaborate on either conviction or otherwise refer to Cameron=s prior criminal history. It would have been impossible for counsel to object to Exhibit No. 17 without alerting the jury to the fact that it referenced several other theft convictions. Trial counsel could have reasonably determined that such an objection would have done more harm than good. We cannot, therefore, say based upon the record before us that trial counsel engaged in an inappropriate trial strategy.
Cameron next argues that trial counsel should have objected to the tape from Officer Brown=s car because comments such as AI=ll take the case@ and AI=ll be the scapegoat@ are not admissions. We disagree.
Further, Cameron argues that trial counsel should have objected to the State=s closing argument because the prosecution urged the jury to consider Cameron=s statements in Officer Brown=s car and his prior criminal record. Because these matters were properly introduced into evidence, we cannot conclude that the State engaged in improper argument and, therefore, cannot conclude that trial counsel was constitutionally ineffective for not objecting. Issue five is overruled.
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
September 6, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.