Jacob Dwight Davis v. State

NUMBER 13-07-00511-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JACOB DWIGHT DAVIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Garza

Appellant, Jacob Dwight Davis, was charged by indictment with aggravated robbery,

a first-degree felony.1 See TEX . PENAL CODE ANN . § 29.03 (Vernon 2003). After a trial

before a Victoria County jury, Davis was convicted of the offense. The jury sentenced

Davis to sixty years’ imprisonment in the Texas Department of Criminal Justice-Institutional

1
The punishm ent range for a first-degree felony is “not m ore than 99 years or less than 5 years.” T EX .
P EN AL C OD E A N N . § 12.32(a) (Vernon 2003).
Division and assessed a $10,000 fine. On appeal, Davis argues that: (1) the evidence

adduced at trial was legally and factually insufficient to establish the use or display of a

deadly weapon in connection with a robbery; (2) the evidence was factually insufficient to

connect Davis to the alleged aggravated robbery; and (3) his trial counsel provided

ineffective assistance of counsel. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 3, 2007, a Victoria County grand jury indicted Davis with aggravated

robbery. The indictment provided the following, in relevant part:

JACOB DWIGHT DAVIS . . . on or about the 29th day of March A.D., 2007,
. . . did then and there, while in the course of committing theft of property and
with intent to obtain or maintain control of said property, intentionally and
knowingly threaten or place MICHAEL DEMAS in fear of imminent bodily
injury or death, and the defendant did then and there use or exhibit a deadly
weapon, to wit: a firearm, that in the manner of its use or intended use is
capable of causing death or serious bodily injury.[2]

A. State’s Evidence

Ashley Godfrey and Stephanie Gallaher testified that on March 29, 2007, they

arrived at the Maximus Gentlemen’s Club in Victoria, Texas, between 1:00 a.m. and 2:00

a.m. The purpose of their visit was to meet Taylor Kelly, a friend of theirs from high school.

Kelly worked at the club as a waitress. Once Godfrey and Gallaher arrived at the club,

three males and one female congregated by their car and followed them as they walked

towards the club. Godfrey testified that the four individuals wore black hooded sweatshirts

2
The indictm ent further provided that:

Prior to the com m ission of the aforesaid offense (hereafter styled the prim ary offense), on
the 18th day of April, A.D. 2002, in cause num ber 2-3912 in the County Court of Victoria
County, Texas, a juvenile court, the defendant was adjudicated under Section 54.03, Fam ily
Code, to have engaged in delinquent conduct constituting the felony offense of Burglary of
a Habitation, com m itted on June 26, 2001[,] for which the defendant was com m itted to the
Texas Youth Com m ission under Section 54.04(d)(2) Fam ily Code, and was not for a state
jail felony punished under Section 12.35(a).

2
and were intimidating. Once Godfrey and Gallaher reached the door to the club, the three

males and one female “gathered around us [Godfrey and Gallaher] and wouldn’t let us in

the bar.” Godfrey and Gallaher both noted that one of the males in the group placed his

arm on the door to prevent the girls from entering the club. Godfrey and Gallaher,

however, were able to successfully enter the club despite the group’s efforts.

The group followed Godfrey and Gallaher into the club. Upon entering the club,

Godfrey and Gallaher encountered the club’s bouncer, Michael Demas. Demas refused

to grant Godfrey and Gallaher permission to enter the club because neither Godfrey nor

Gallaher were escorted by a male or were at least twenty-one years old. In any event,

Godfrey and Gallaher notified Demas that they: (1) were being followed by a group of

three males and one female; (2) were afraid to go back outside; (3) did not want to go back

outside by themselves; and (4) were there to see their friend, Kelly. Demas, however,

continued to insist that Godfrey and Gallaher could not enter the club. Demas

subsequently turned his attention to the group of people behind Godfrey and Gallaher.

The testimony at trial established that the group of people behind Godfrey and

Gallaher was comprised of two African-American males, one possibly Hispanic male, and

an African-American female. Demas, Godfrey, and Gallaher each testified that the group

of individuals was acting strangely prior to and during their interaction with Demas. Demas

testified that the group moved along the wall of the club, never showing their backs to him,

which, according to Demas, was strange. Demas further testified that the leader of the

group, a tall, dark-skinned African-American later identified as Davis, never paid the cover

charge to get into the club, and that Davis never made eye contact with Demas. Instead,

Davis looked around the club suspiciously. Demas suspected that Davis was “casing” the

3
club. Godfrey stated that Davis was jumping around and saying that he was paranoid.

Godfrey noticed that Davis’s eyes were dilated, he was jittery, and he was shaking.

Gallaher believed that Davis was on drugs because he was pacing back and forth. While

Demas was dealing with Davis and his friends, Kelly met up with Godfrey and Gallaher in

the doorway of the club. Shortly thereafter, Davis grabbed the tip jar that was at Demas’s

station and proceeded to quickly exit the club. Demas pursued Davis and eventually

caught up to him. Demas wrestled with Davis, forced him to the ground, and retrieved the

tip jar. At the time that Davis absconded with the tip jar, eyewitnesses were unable to

pinpoint the location of the rest of the group members.

Seconds later, Davis returned to the club aiming a firearm at Demas’s head. As

Davis raised the firearm to Demas’s head, Demas yelled “[g]un” and ran away from Davis.

Chaos ensued inside the club. The lights in the club were turned out, and the patrons of

the club scurried to safety. Godfrey recalled hiding near the cash register and Gallaher hid

in the men’s restroom. Kelly testified that she was knocked against the wall of the club,

and that during the ruckus, she dropped the tips that she had earned that night. As

everyone in the club ran for cover, Kelly kneeled to recover the tips that she had dropped

on the floor and observed Davis with the firearm raised.3 According to several

eyewitnesses, Davis pulled the trigger of the firearm repeatedly, producing at least three

audible “clicks.”

After realizing that his firearm had malfunctioned, Davis proceeded to the nearby

cash register. Demas testified that Davis fumbled around with the cash register while still

holding the firearm up. While Davis fumbled around with the cash register, Demas found

3
Kelly and Dem as identified Davis as the gunm an and as the individual who stole Dem as’s tip jar.

4
an empty beer bottle that he intended to use as a weapon to ward off Davis. Demas then

pursued Davis with the beer bottle. Davis, unable to get the cash register open and seeing

Demas with the beer bottle, fled the club. Demas then threw the beer bottle at Davis, but

Davis was able to escape the club unharmed. Demas identified a picture of a black

revolver found near the club as the one Davis used in the club. Demas testified that the

police came to investigate the scene within five minutes of Davis’s escape from the club.

Katie Martinez, a nursing student living in the apartment complex next to the club,

testified that there is an alleyway between her apartment and the club and that her mother

and grandmother, while sitting near a window in the apartment, overheard a group of

people exclaim “[c]hunk it, chunk it, the cops are coming” from the nearby alleyway. At this

point, Davis’s trial counsel objected to Martinez’s testimony as hearsay. The State argued

that Martinez’s mother and grandmother immediately told Martinez about the incident and

that the statements were admissible under the present sense impression exception to the

hearsay rule. See TEX . R. EVID . 803(1). After a conference at the bench, the trial court

overruled Davis’s objection. Martinez then noted that her mother said, “Come, look, look,

look, they’re running from the cops, they’ve thrown something.” Martinez admitted that she

did not ever see any object thrown, and that she only saw the police when she arrived at

the window.

Officer Kevin Wilkins of the Victoria Police Department testified that he responded

to a dispatch call pertaining to the club at 1:30 a.m. on March 29, 2007. With respect to

the nature of the call, dispatch told Officer Wilkins that “[t]hey said a subject with a gun had

pulled it out on someone at Maximus and they had fled, fled the scene.” Officer Wilkins

noted that:

5
 Whenever I first pulled up I saw a White male, it was Mr. Demas, the
victim, he came out. And there was two other males in the parking lot. And
he said man, this guy just pulled a gun on me, he’s wearing a gray sweater
with the number seven on it. And the other two . . . males, I didn’t get them
identified because we were in a hurry. They said they ran north, we saw
them come around the fence.[4]

....

And that’s the description I had, a Black male, and they said that there
was—there was a total of four subjects, there was a Black female and two
Black males, I think a Hispanic male, we weren’t sure. He said we know it
was three guys and a girl.

Officer Wilkins found the group in the apartment complex where Martinez lived.

Officer Wilkins stated that “[t]hey were in front of I believe it was Apartment Number 2.

They [the three males and one female] were huddled down real quiet and then we saw

them.” One of the members of the group matched the description of the gunman provided

by Demas. Officer Wilkins proceeded to apprehend the group and instructed Demas to

identify the perpetrator; Demas identified Davis as the gunman.

Davis was subsequently arrested and read his Miranda rights. See generally

Miranda v. Arizona, 384 U.S. 436 (1966). Davis identified himself to law enforcement as

Asian Perry, a false alias. Police, however, were able to identify later Davis based on a

tattoo he had on the back of his neck, stating “Mae-Mae.” Officer Wilkins testified that one

would have to get close to Davis in order to view the tattoo and that it did not seem like

Davis was on drugs. Instead, Davis just glared at Officer Wilkins when asked questions

and was generally uncooperative.

Detectives Jonathan Allen and Kevin Kroos of the Victoria Police Department

4
Several witnesses testified that there is a fence in between the Maxim us club and the apartm ents
where Martinez lived.

6
coordinated the investigation under the supervision of Sergeant Olga Gamez. In searching

the area surrounding the club and the apartment complex in which Martinez lived on the

night of the incident, police were unable to find a firearm. A black revolver—a Taurus .38

Special—was found the next day in front of a storage building near the club and behind the

apartment complex. In the process of searching for the revolver, Detectives Allen and

Kroos encountered a woman who identified herself as a resident of the apartment

complex.5 She told the detectives that she was awakened the previous night by someone

yelling “Throw it, throw it, the cops.”

Detective Allen testified that, based on his training and experience, the revolver

would have made a click noise if it had misfired and that the revolver appeared to have

“five expended ammunition cartridges or brass casings.”6 Detective Allen did not search

the revolver for fingerprints, but he believed that Detective Kroos had submitted the

revolver to be processed for fingerprints. Detective Allen admitted that the revolver had

rust on it, but later testified that rust could have formed on the revolver due to improper

care of the revolver. Detective Kroos admitted that neither the tip jar nor the cash register

were checked for fingerprints. He also admitted that no fingerprints were found on the

revolver but that the revolver constituted a deadly weapon.

Officer Robert Popps, a jailer with the Victoria County Sheriff’s Department, testified

that Davis was incarcerated in the jail where Officer Popps worked. Officer Popps noted

5
Police never discovered the identity of this wom an other than that she was a resident of apartm ent
num ber 11. Detective Kroos stated that the wom an quickly left the scene after disclosing the inform ation to
police.

6
In a statem ent m ade to police shortly after the incident, Dem as noted that Davis had fired the
revolver five tim es, resulting in five audible “clicks”; however, at trial, Dem as testified to only hearing three
“clicks.”

7
that he intercepted two letters sent by Davis to his brother, who was housed in the same

jail. Officer Popps identified the State’s Exhibits 24 and 25 as the letters that he had

intercepted from Davis. The letter introduced as State’s Exhibit 24 provided the following:

Erica[7] came to jail for talkin shit to the laws [sic]. I rob [sic] the club for a
1,000 dollars[.] [T]hey can’t charge me cause [sic] they don’t have the gun.
I’m gonna bond out. Soon when they tell me my bond I been out here on
some gansta [sic] shit bro fo [sic] real.

The letter introduced as the State’s Exhibit 25 provided as follows:

Say bro I rob [sic] the club for 1,000[.] [T]hey an’t [sic] got shit on me coz
[sic] they don’t have the gun so most likely I’m gonna bond out[.] I got to wait
in [sic] see what they [are] gonna do to Erica once they let here [sic] go[.] I’ll
be alright[.] [T]he only reason why they brought Erica to Jail cuz [sic] she
was talkin shit to the laws [sic] . . . . I [have] been out here on some gansta
[sic] shit you thought.

Officer Popps testified that both letters were written in the same handwriting and that Davis

admitted that the letters were his. Once Officer Popps intercepted the letters, he passed

the letters on to his supervisor.

B. Davis’s Evidence

Davis called two witnesses to testify on his behalf—Sergeant Gamez and Officer

Edward Flores. Sergeant Gamez testified that no photographs were taken of the crime

scene because there was nothing of significance to photograph. She further testified that

the police were familiar with Davis because they were investigating him regarding another

incident, thus aiding in their identification of Davis based on the tattoo on his neck.

Sergeant Gamez noted that she was present when Davis was arrested and that he did not

appear drunk or high on drugs when he was arrested. She also noted that Officer

7
Erica is Davis’s cousin. The record reflects that her full nam e is Erica McClure. She testified that
she was present with Davis at the club on the night of the incident, and that she lost track of Davis during the
alleged robbery because Davis told her that he was going around the corner to use the restroom .

8
Telamantes8 was in charge of gathering statements from those who witnessed the incident

and that she had never heard of Godfrey, Gallaher, or Martinez. Sergeant Gamez recalled

that the tip jar and the register were checked for fingerprints. She was unaware of the

results of the fingerprint test on the tip jar, and she stated that Officer Telamantes was

unable to get any usable latent fingerprints from the register.

Officer Flores stated that he was present when Davis was processed at the jail, and

he filled out the inventory report which was introduced as Defendant’s Exhibit 1. The

inventory report stated that Davis had the following items, among other things, on his

person when he was processed at the jail: (1) four quarters and one nickel; (2) one pen;

(3) a black glove; (4) miscellaneous sheets of paper; and (5) two condoms.

The jury subsequently found Davis guilty of aggravated robbery, sentenced him to

sixty years’ incarceration in the Texas Department of Criminal Justice-Institutional Division,

and assessed a $10,000 fine. Davis filed his notice of appeal on August 16, 2007, and the

trial court certified Davis’s right to appeal on August 20, 2007. On September 14, 2007,

Davis filed a motion for new trial and a motion in arrest of judgment, arguing that the

evidence was insufficient to support the jury’s verdict. The trial court denied Davis’s

motions on September 19, 2007. This appeal ensued.

II. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE SUPPORTING DAVIS ’S CONVICTION

In his first three issues on appeal, Davis argues that the evidence adduced at trial

did not support a conviction of aggravated robbery. See id. § 29.03. Specifically, Davis

contends that there was a “temporal disconnect” between the stealing of the tip jar and the

return to the club; therefore, the return to the club constituted an entirely different criminal

8
The record is unclear as to Officer Telam antes’s first nam e.

9
episode for which the evidence demonstrated that Davis did not commit theft. In addition,

Davis contends that the evidence did not demonstrate that he displayed or utilized a deadly

weapon in stealing the tip jar. Davis also asserts that the State did not present factually

sufficient evidence connecting him to the offense. The State argues that the stealing of

the tip jar and the subsequent return to the club constituted a single criminal episode, and

that the evidence adduced at trial pertaining to these two events supports Davis’s

conviction. The State also argues that the evidence connecting Davis to the offense is

factually sufficient because several eyewitnesses identified him as the gunman at the club.

A. Standard of Review

In conducting a legal sufficiency review, we view the relevant evidence in the light

most favorable to the verdict to determine whether a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19

(1979)); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). The trier of fact

is the sole judge of the facts, the credibility of the witnesses, and the weight given to

testimony. See TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979); Beckham v. State,

29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd). We do not

reevaluate the weight and credibility of the evidence, nor do we substitute our own

judgment for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000);

Beckham, 29 S.W.3d at 151. Instead, we consider whether the jury reached a rational

decision. Beckham, 29 S.W.3d at 151. We must resolve any inconsistencies in the

evidence in favor of the judgment. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

10
 In a factual sufficiency review, we review the evidence in a neutral light to determine

whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly

unjust, or the jury's verdict is against the great weight and preponderance of the evidence.

Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). This Court will not

reverse the jury's verdict unless we can say with some objective basis in the record that the

great weight and preponderance of the evidence contradicts the verdict. Id. at 417.

The State is not required to present direct evidence, such as eyewitness testimony,

to establish guilt. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

"Circumstantial evidence is as probative as direct evidence in establishing the guilt of the

actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper, 214

S.W.3d at 13; Guevara, 152 S.W.3d at 49. The law does not require that each fact "point

directly and independently to the guilt of the appellant, as long as the cumulative effect of

all the incriminating facts is sufficient to support the conviction." Hooper, 214 S.W.3d at

13; Guevara, 152 S.W.3d at 49.

Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet.

ref'd). Under a hypothetically correct jury charge, a person commits aggravated robbery

“if he commits robbery . . . and he . . . uses or exhibits a deadly weapon . . . .” TEX . PENAL

CODE ANN . § 29.03 (Vernon 2003). Moreover, a person commits robbery “if, in the course

of committing theft . . . and with intent to obtain or maintain control of the property, he . .

. intentionally or knowingly threatens or places another in fear of imminent bodily injury or

death.” Id. § 29.02 (Vernon 2003). A person acts intentionally with respect to a result of

11
his conduct when it is his conscious objective or desire to engage in the conduct or cause

the result. Id. § 6.03(a) (Vernon 2003).

B. The Evidence Pertaining to the Usage or Display of a Firearm

Davis argues that the State’s evidence does not establish that he used or displayed

a deadly weapon “in the course of committing a theft.” See TEX . PENAL CODE ANN . §

29.01(1) (Vernon 2003). Thus, Davis states that he could not have committed aggravated

robbery. Davis also argues that he did not steal anything from the club; therefore, no theft

occurred.

Section 29.01(1) of the penal code provides that the phrase “in the course of

committing a theft” means “conduct that occurs in an attempt to commit, during the

commission, or in immediate flight after the attempt or commission of theft.”9 Id. (emphasis

added). In analyzing section 29.01(1), the Texas Court of Criminal Appeals and this Court

have held that:

The offenses of robbery and aggravated robbery, as defined . . . do not
require as an element thereof that the property sought actually be obtained.
It is sufficient to show an intent to obtain (or maintain) control of the property,
an accompanying theft or attempted theft, and the additional acts with
requisite intent set forth in Sections 29.02(a)(1) or (2), 29.03(a)(1) or (2) . .
. . Since the actual success of obtaining the property sought is not an
element of the offense of aggravated robbery, the fact that the acts tend but
fail to obtain the property does not render them insufficient to effect the
commission of the offense of aggravated robbery.

Watts v. State, 516 S.W.2d 414, 415 (Tex. Crim. App. 1974); see Earl v. State, 514

S.W.2d 273, 274 (Tex. Crim. App. 1974) (“Thus the actual commission of the offense of

theft is not a prerequisite to commission of a robbery . . . .”); see also Cates v. State, No.

9
Section 31.03 of the penal code provides that a person com m its theft “if he unlawfully appropriates
property with intent to deprive the owner of property.” Id. § 31.03(a) (Vernon Supp. 2008).

12
13-95-325-CR, 1997 Tex. App. LEXIS 4833, at *15 (Tex. App.–Corpus Christi Aug. 28,

1997, no pet.) (mem. op., not designated for publication).10

Considering only the events surrounding Davis’s return to the club, we hold that the

evidence adduced at trial is legally and factually sufficient to support his conviction.11

Godfrey, Gallaher, Kelly, and Demas each testified that Davis entered the club and pointed

a firearm at Demas and other patrons of the club. Demas noted that Davis pointed the

firearm at his head and pulled the trigger repeatedly, producing several audible “clicks” that

were heard by several witnesses. At that time, Demas yelled, “gun,” and quickly ran for

cover.12 Shortly thereafter, Demas observed Davis fumbling with the cash register while

still aiming the firearm. The jury could have reasonably concluded that this constituted an

attempt to commit theft. See TEX . PENAL CODE ANN . § 29.01(1). Later, Demas identified

10
Davis cites to case from this Court, Blount v. State, 851 S.W .2d 359, 363 n.3 (Tex. App.–Corpus
Christi 1993, no pet.), for the proposition that a robbery or aggravated robbery conviction cannot be sustained
without a com pleted theft. W e disagree. In Blount, this Court explained that “although theft is an integral part
of the offense of aggravated robbery, the actual completion of a theft is not necessary for conduct to constitute
robbery.” Id. at 364 (citing Cook v. State, 840 S.W .2d 384, 389 (Tex. Crim . App. 1992)) (em phasis in original).
W ith respect to theft, the evidence m ust show that either a theft or an attem pted theft occurred. See id. If
neither a theft nor an attem pted theft has occurred, then a defendant cannot be convicted of robbery or
aggravated robbery. Id. at 363 n.3 (citing Cook, 840 S.W .2d at 387); see Ex parte Santellana, 606 S.W .2d
331, 333 (Tex. Crim . App. 1980) (“Two crim inal acts are im plicit in the offense of aggravated robbery: a theft,
whether attem pted, in progress, or com pleted, and an assault, which in the instant case was allegedly done
by threat with a deadly weapon.”). Here, the evidence suggests that an attem pted theft occurred and that
Davis used a firearm to com m it an assault.

11
Because we conclude that the evidence of the events pertaining to Davis’s return to the club is
legally and factually sufficient to support his conviction for aggravated robbery, we need not consider the
evidence regarding Davis’s stealing of the tip jar. See T EX . R. A PP . P. 47.1.

12
Davis argues that Dem as never testified that he was fearful for his life and that Dem as’s attem pt
to ward Davis off using an em pty beer bottle indicated that he was not scared of Davis. W e disagree. Dem as
ran into the club scream ing “gun” after Davis had aim ed the gun at his head; therefore, it would have been
reasonable for the jury to conclude that Dem as was fearful for his life. In any event, the aggravated robbery
statute, section 29.03 of the penal code, provides that a person com m its robbery and “(1) causes serious
bodily injury; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to another person or threatens
or places another person in fear of im m inent bodily injury or death . . . .” T EX . P EN AL C OD E A N N . § 29.03(a)
(Vernon 2003) (em phasis added). As previously m entioned, several witnesses testified that Davis used a
firearm in the com m ission of this offense. The court of crim inal appeals has held that a firearm is a per se
deadly weapon. See Polk v. State, 693 S.W .2d 391, 394 (Tex. Crim . App. 1985). Therefore, whether Dem as
was fearful for his life is irrelevant. See T EX . P EN AL C OD E A N N . § 29.03(a).

13
the black revolver found by police at the nearby apartment complex as the firearm used

by Davis in the commission of the offense. Officer Flores’s testimony that Davis only had

$1.05 on his person at the time of arrest seems to suggest that Davis’s attempt to steal

money from the cash register was not successful. However, as noted earlier, a successful

theft is not required to sustain a conviction for aggravated robbery. See Watts, 516 S.W.2d

at 415; Earl, 514 S.W.2d at 274; see also Cates, 1997 Tex. App. LEXIS 4833, at *15.

We find that the cumulative effect of all the incriminating facts suggests that Davis

intended to steal from the club’s cash register while using a deadly weapon, a firearm. See

TEX . PENAL CODE ANN . §§ 29.02, 29.03; see also Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007) (“This standard [the legal sufficiency standard] accounts for the

factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. . . . [W]e determine whether the

necessary inferences are reasonable based upon the combined and cumulative force of

all the evidence when viewed in the light most favorable to the verdict.”) (internal quotations

omitted); Hooper, 214 S.W.3d at 13; Guevara, 152 S.W.3d at 49. We therefore conclude

that the evidence demonstrating Davis’s use of a deadly weapon in the commission of an

aggravated robbery is legally sufficient. See Hooper, 214 S.W.3d at 13; Guevara, 152

S.W.3d at 49. Moreover, in viewing the evidence in a neutral light, we cannot say that the

jury’s determination that Davis used a deadly weapon in the commission of this offense is

clearly wrong and manifestly unjust or against the great preponderance of the evidence.

See Watson, 204 S.W.3d at 414-15. Therefore, the evidence was factually sufficient to

support that determination.

14
C. The Evidence Connecting Davis to the Alleged Aggravated Robbery

Next, Davis asserts that the testimony of the State’s witnesses was inconsistent;

therefore, the evidence connecting him to the aggravated robbery was factually insufficient.

In particular, Davis contends that the witnesses disagreed about his physical appearance,

what he was wearing that night, and his general demeanor prior to the stealing of the tip

jar.

Demas testified that Davis was wearing a gray sweater with the number seven on

it, and Godfrey and Gallaher recalled that Davis was wearing a black hooded sweatshirt.

Demas noted that Davis had a mustache; however, Godfrey could not recall if Davis had

a beard or a mustache. Finally, Demas stated that Davis refused to make eye contact with

him when Demas was attempting to collect Davis’s cover charge and that Davis appeared

to be “casing” the club. Godfrey and Gallaher both remembered that Davis was acting

strangely, as if he was drunk or on drugs. Kelly, on the other hand, did not recall Davis

acting strangely. Davis asserts that these inconsistencies in the testimony render the

evidence connecting him to the aggravated robbery factually insufficient.

We note that the jurors were free to accept or reject any or all of the witnesses’

testimony that they did not believe to be credible. See Davila v. State, 147 S.W.3d 572,

575 (Tex. App.–Corpus Christi 2004, pet. ref’d) (citing Alvarado v. State, 818 S.W.2d 100,

105 (Tex. App.–San Antonio 1991, no pet.)); see also Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008) (“The jury is in the best position to judge the credibility of a

witness because it is present to hear the testimony, as opposed to an appellate court who

relies on the cold record.”). Although there were some inconsistencies in the testimony

presented, these inconsistencies were not enough to render the evidence insufficient. See

15
Davila v. State, 147 S.W.3d 572, 575 (Tex. App.–Corpus Christi 2004, pet. ref’d) (holding

that contradictory testimony from witnesses does not render the evidence insufficient)

(citing Mercado v. State, 695 S.W.2d 25, 29 (Tex. App.–Corpus Christi 1985), aff’d, 718

S.W.2d 291 (Tex. Crim. App. 1986)).

Here, two witnesses—Demas and Kelly—identified Davis in open court as the

perpetrator of the offense.13 Furthermore, Officer Wilkins testified that he presented a

lineup to Demas shortly after the incident had occurred, and Demas identified Davis as the

perpetrator. Based on the evidence presented, we cannot say that the evidence is so

weak that the jury's determination that Davis was the perpetrator seems clearly wrong and

manifestly unjust or against the great weight and preponderance of the evidence. See

Watson, 204 S.W.3d at 414-15. Accordingly, we overrule Davis’s first three issues.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In his fourth issue, Davis contends that his trial counsel’s failure to object to the

admission of evidence connecting him with the weapon found by police amounted to

ineffective assistance of counsel. The State counters by arguing that Davis’s trial counsel

did object to the admission of evidence connecting Davis with the weapon found by police

and that trial counsel’s strategy was probably intended to de-emphasize facts presented

to the jury.

A. Applicable Law

To establish ineffective assistance of counsel, Davis must show: (1) his attorney's

representation fell below an objective standard of reasonableness; and (2) there is a

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It is also noteworthy that: (1) Davis, in writing to his brother, adm itted that he had robbed a club for
$1,000 on the night of the incident; and (2) Erica, his cousin, had spoken to law enforcem ent about the
aggravated robbery at the club where she adm itted that she and Davis were in the vicinity of the club at the
tim e the incident transpired.

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reasonable probability that, but for his attorney's errors, the result of the proceeding would

have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Hernandez

v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Jaynes v. State, 216 S.W.3d 839, 851

(Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been met is to be judged

on appeal by the totality of representation, not by any isolated acts or omissions. Jaynes,

216 S.W.3d at 851. The burden rests on the appellant to prove ineffective assistance of

counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App.

1984)).

Our review of counsel's representation is highly deferential, and we will find

ineffective assistance only if the appellant overcomes the strong presumption that his

counsel's conduct fell within the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to "reasonably effective

assistance of counsel" does not guarantee errorless counsel or counsel whose

competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.

Crim. App. 1983). Moreover, the acts or omissions that form the basis of appellant's claim

of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d at 814;

Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for counsel's

actions usually will not overcome the strong presumption of reasonable assistance.

Thompson, 9 S.W.3d at 813-14.

B. Discussion

Davis alleges that his trial counsel provided ineffective assistance because he failed

to renew an objection to Martinez’s testimony regarding her mother and grandmother’s

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statements about the disposal of the gun. Davis suggests that his trial counsel should

have continued to object to Martinez’s testimony even after the trial court had overruled his

objection.

In reviewing the record, we find that Davis is correct in stating that his trial counsel

initially objected to Martinez’s testimony as hearsay. We also find that trial counsel made

numerous other objections to proffered testimony at trial and filed numerous pleadings on

behalf of Davis. We must be careful to not analyze trial counsel’s performance based on

isolated incidents but rather on the totality of his representation. Jaynes, 216 S.W.3d 839

at 851. Davis admits that the record is silent as to trial counsel’s strategy for not

continually objecting to Martinez’s testimony. Furthermore, we are not privy to the

discussion that took place at the bench prior to the trial court’s overruling of trial counsel’s

hearsay objection.

The Texas Court of Criminal Appeals has recently stated the following with respect

to ineffective assistance claims:

We decline to find counsel ineffective on this basis on the record before us.
As we have done many times before, we point out that the record on direct
appeal is usually inadequate to address ineffective assistance claims.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Before
granting relief on a claim that defense counsel failed to do something, we
ordinarily require that counsel be afforded the opportunity to outline the
reasons for the omission. Id. To warrant reversal without affording counsel
such an opportunity, the challenged conduct must be “so outrageous that no
competent attorney would have engaged in it.” Id.

Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007). Because the record is

silent as to trial counsel’s strategy, we must examine whether his alleged failure to object

to Martinez’s testimony is “‘so outrageous that no competent attorney would have engaged

in it.’” See id. (quoting Goodspeed, 187 S.W.3d at 392).

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 As mentioned earlier, Martinez testified that her mother and grandmother heard

someone exclaim, “[c]hunk it, chunk it, the cops are coming.” Martinez later admitted that

she neither heard the statements made nor witnessed any object thrown. However,

several witnesses identified Davis as the perpetrator of the offense and noted that Davis

used a firearm in the commission of the crime. Furthermore, Demas identified the revolver

found by police as the firearm that Davis had used.

It is plausible that Davis’s trial counsel did not wish to inflame the jury or the court

or highlight certain facts by continuously objecting to Martinez’s testimony. Furthermore,

Davis’s trial counsel likely was aware that Texas courts have affirmed convictions even

though the alleged deadly weapon was never found. See Magana v. State, 230 S.W.3d

411, 414 (Tex. App.–San Antonio 2007, pet. ref’d) (affirming an aggravated assault

conviction and noting that the State does not have to introduce the weapon into evidence

to prove that it was a deadly weapon) (citing Morales v. State, 633 S.W.2d 866, 868 (Tex.

Crim. App. 1982)); see also Hunter v. State, Nos. 01-00-00722-CR & 01-00-00726-CR,

2001 Tex. App. LEXIS 4532, at **4-6 (Tex. App.–Houston [1st Dist.] July 5, 2001, no pet.)

(mem. op., not designated for publication) (affirming a conviction even though the firearm

used in the commission of the offense was never found); Jeffery v. State, No. C14-84-329-

CR, 1985 Tex. App. LEXIS 6581, at *3 (Tex. App.–Houston [14th Dist.] Apr. 25, 1985, no

pet.) (mem. op., not designated for publication) (same).

Because it is plausible that Davis’s trial counsel did not wish to inflame the jury or

the court or highlight certain facts by continuously objecting to Martinez’s testimony, and

because it is likely that Davis’s trial counsel was aware of case law stating that the deadly

weapon need not be found in order to sustain a conviction, we cannot say that the actions

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of Davis’s trial counsel were so outrageous as to overcome the presumption of reasonable

assistance. See Roberts, 220 S.W.3d at 533; Goodspeed, 187 S.W.3d at 392; see also

Thompson, 9 S.W.3d at 813-14. Accordingly, we overrule Davis’s fourth issue.

IV. CONCLUSION

Having overruled all of Davis’s issues on appeal, we affirm.

DORI CONTRERAS GARZA,
Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 23rd day of April, 2009.

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