Affirmed and Memorandum Opinion filed August 17, 2004.
In The
Fourteenth Court of Appeals
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NOS. 14-03-00910-CR
14-03-00911-CR
14-03-00912-CR
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CARLOS ARMANDO NUNEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause Nos. 929143, 929144, & 929588
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M E M O R A N D U M O P I N I O N
Appellant entered a plea of not guilty to three charges of aggravated robbery. After a trial by jury, he was convicted of the offenses and sentenced to forty-five years= confinement for each offense, to run concurrently. In four issues, appellant contends (1) he received ineffective assistance of counsel and (2) the evidence was legally and factually insufficient to support his convictions. We affirm.
I. Factual Background
Late at night on October 30, 2002, and early in the morning of October 31, 2002, appellant, Luis Cruz, and another male conducted a spree of several armed robberies. Late in the evening on October 30, Monica Bazile and Mark Samuel drove home from the AMs. Texas Southern University@ pageant coronation. Samuel stepped out of the car and walked toward Bazile=s apartment to open the door for her. A man approached Samuel and put a gun to his head. At the same time, another man approached the door of the car where Bazile was still sitting, and put a gun to her head. The men stole approximately $100 in cash, a watch, a CD player, a bottle of cologne, and jewelry. Bazile positively identified appellant and tentatively identified Cruz in the video line-up. At trial, she identified both defendants and the stolen property found in appellant=s and Cruz=s possession.
At approximately 11:30 p.m. on October 30, 2002, Mustafa Yusuf was driving into his garage when he saw two men exit a black sport utility vehicle enter the garage. One man pointed a gun at Yusuf while the other took everything from his pockets. While one man continued to point the gun at Yusuf, the other man attempted to rob Yusuf=s neighbor, Lawrence Love. Love was still in his car when one of the men approached him in his garage. Love honked his horn until both men left. Yusuf identified his cellular telephone, contents of his wallet, watch, and video camera, which were found in appellant=s and Cruz=s possession when they were arrested. In the video line-up, Yusuf positively identified Cruz and tentatively identified appellant. At trial, Yusuf identified appellant and Cruz as the men who robbed him.
At approximately 12:15 a.m. on October 31, 2002, Curry Brown had just departed a bus in front of his apartment. He noticed a dark colored sport utility vehicle circling the parking lot. As Brown walked through the security gate, two men exited the sport utility vehicle and both held guns to his head. The men took Brown=s wallet, jewelry, CD player, and jacket. Brown identified appellant and his co-defendant, Cruz, in a video line-up shortly after the robbery and at trial. Brown also identified the property stolen from him, which was found in the possession of appellant and Cruz when they were arrested.
At approximately 2:00 a.m., William Coleman was returning home when he saw a black sport utility vehicle driving through the security gate at his apartment complex. Coleman parked and exited his vehicle. Two men approached him, pointed guns at him and demanded that he give them Aall his stuff.@ The men stole $200 in cash and a ring. Coleman positively identified appellant in the video line-up and at trial. Coleman also identified the ring, which was found on appellant=s finger when he was arrested.
At the punishment phase of trial, appellant admitted to the robberies of Brown and Coleman, but said he did not rob Bazile. He admitted to being present when Bazile was robbed, but said Cruz pointed the gun at her.
II. Discussion
A. Ineffective Assistance of Counsel
In his first issue, appellant contends he received ineffective assistance of counsel because his counsel failed to request a severance of his trial from that of Cruz. Whether a defendant received effective assistance of counsel is governed by the Strickland test promulgated by the United States Supreme Court. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prove an ineffective assistance of counsel claim, the appellant must first show that counsel=s performance was deficient to the extent his or her assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, the appellant must affirmatively prove prejudice. Id. Under the second prong, the record must show a reasonable probability that, but for counsel=s error, the outcome of the proceeding would have been different. Perez v. State, 960 S.W.2d 84, 88 (Tex. App.CAustin 1997, no pet.).
Appellant bears the burden to prove by a preponderance of the evidence that his trial counsel was ineffective. Thompson, 9 S.W.3d at 813. When reviewing a claim of ineffective assistance, a court must indulge a strong presumption that counsel=s conduct falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Further, an allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the supposed ineffectiveness. Thompson, 9 S.W.3d at 813. When presented with no evidence of counsel=s reasons for the challenged conduct, an appellate court will presume a strategic motivation if one can be imagined and will not conclude counsel=s action was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). If the record does not contain a specific explanation for defense counsel=s actions, an appellate court cannot reverse a conviction based upon a claim of ineffective assistance of counsel. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002).
In this case, appellant fails to satisfy the first prong of the Strickland test because there is nothing in the record to overcome the strong presumption that counsel=s conduct was reasonable and professional. Because there was neither a motion for new trial, nor a petition for writ of habeas corpus to explain trial counsel=s actions, the record is undeveloped and not adequate to reflect any alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003). Thus, we must presume that counsel had a plausible reason for her actions. See Safari v. State, 961 S.W.2d 437, 445 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d, untimely filed). To conclude otherwise calls for speculation, and this we will not do. See id. (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)).
In his second issue, appellant contends he was denied effective assistance of counsel because of the Acumulative effect of the errors set forth herein.@ Although a number of errors can be found harmful in their cumulative effect, non-errors may not, in their cumulative effect, amount to error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). Because appellant has demonstrated no deficient performance by his trial counsel, there can be no cumulative error or harm. Accordingly, his second issue is overruled.
B. Legal and Factual Sufficiency of the Evidence
1. Standards of Review
In his third and fourth issues, appellant contends the evidence is legally and factually insufficient to support his conviction for the aggravated robberies of Brown, Bazile, and Coleman.[1] In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). This standard is applied to both direct and circumstantial evidence. McMillon v. State, 940 S.W.2d 767, 768 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d). In conducting our review, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562; Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998) (stating appellate courts are not fact-finders and may not re-evaluate the weight and credibility of the record evidence in determining the sufficiency of evidence).
In conducting a factual sufficiency review, we view all of the evidence in a neutral light, without favoring either party. Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000). We will set aside the verdict only if (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004); see Zuliani v. State, 97 S.W.3d 589, 593B94 (Tex. Crim. App. 2003). When reviewing the evidence, we must give appropriate deference to the jury findings in order to prevent intruding on the fact finder=s role as the sole judge of the weight and credibility of the evidence. Johnson, 23 S.W.3d at 7. Therefore, unless the record clearly reveals a different result is appropriate, we Amust defer to the jury=s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor.@ Id. at 8.
2. Nature of the Charged Offense and the Law of Parties
Appellant was charged with aggravated robbery as primary actor and as a party. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. ' 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if 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. Tex. Pen. Code Ann. ' 7.02(a)(2). A person commits robbery if, in the course of committing theft he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. ' 29.02(a)(1)B(2). An aggravated robbery occurs when a person commits robbery as defined in section 29.02 and he uses or exhibits a deadly weapon. Tex. Pen. Code Ann. ' 29.03(a)(2).
In determining whether the accused participated as a party, the court may look to events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). Evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Id.
3. Analysis of Appellant=s Challenges to Legal and Factual Sufficiency
of the Evidence
a. Aggravated Robbery of Curry Brown
Appellant first contends the evidence was legally and factually insufficient to support his conviction for the aggravated robbery of Curry Brown. Appellant argues Brown=s identification was unreliable because the lighting in the area was poor, Brown was not wearing his glasses, and Brown did not identify which specific role in the robbery each defendant played.
The record shows that although Brown testified the lighting in the apartment complex parking lot was poor, he also testified that appellant and Cruz were close enough to see. The record does not support appellant=s contention that Brown was not wearing his glasses on the night of the robbery. The prosecutor commented that Brown ordinarily wears glasses, but Brown did not testify that he was not wearing his glasses on the night of the robbery. Brown positively identified appellant and Cruz at trial. With regard to which role appellant played in the robbery, he was charged both as a primary actor and as a party. Brown=s testimony supports the conclusion that the parties were acting together, each contributing some part toward the execution of their common purpose. Finally, when appellant and Cruz were arrested, they were found in possession of Brown=s property.
b. Aggravated Robbery of Monica Bazile
Appellant next contends the evidence is legally and factually insufficient to support his conviction for the aggravated robbery of Monica Bazile because Bazile=s identification of appellant was unreliable. Appellant argues Bazile=s vision was impaired because her glasses were fogged; she did not look at the perpetrator during the entire robbery because she was told to turn her head; she was not positive in her identification of appellant; and she was unsure which role appellant played in the robbery.
The record reflects that although Bazile=s glasses were initially fogged when the perpetrator opened the door of the vehicle, she was able to see him and positively identify appellant at trial. Appellant points to a dialogue between the prosecutor and Bazile in which it appears Bazile confused Cruz and appellant. Appellant contends this confusion diluted Bazile=s positive identification of appellant. However, when reading the totality of Bazile=s testimony, the evidence shows that Bazile identified appellant as the man who held her at gunpoint and Cruz as the man who robbed Samuel. This testimony is supported by Bazile=s identification of appellant in the video line-up. Further, appellant and Cruz were arrested with Bazile=s and Samuel=s property in their possession. With regard to which role appellant played in the robbery, he was charged both as a primary actor and as a party. As with the Brown robbery, Bazile=s testimony supports the conclusion that the parties were acting together, each contributing some part toward the execution of their common purpose.
c. Aggravated Robbery of William Coleman
Appellant contends Coleman=s identification of appellant was tainted by the fact that Coleman misidentified someone else in the video line-up. Coleman positively identified appellant as one of the perpetrators in the video line-up and at trial. When asked whether he identified anyone else in the video line-up, Coleman responded, AActually I did, but Officer Mejia told me that that wasn=t the correct one.@ The fact that Coleman previously identified someone else as the second perpetrator was merely a factor for the jury to consider in assessing the weight of Coleman=s testimony. See Livingston v. State, 739 S.W.2d 311, 329B30 (Tex. Crim. App. 1987). Coleman was positive in his identification of appellant and appellant presented no evidence contradictory to Coleman=s testimony.
Reviewing all of the evidence in the light most favorable to the verdict, we find legally sufficient evidence to support the conviction of appellant for the aggravated robberies of Brown, Bazile, and Coleman. Reviewing all of the evidence neutrally, we find the evidence supporting the verdict was strong enough to support the finding of guilt beyond a reasonable doubt and any contrary evidence was not strong enough to undermine the beyond-the-reasonable-doubt standard. Appellant=s third and fourth issues are overruled.
The judgment of the trial court is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed August 17, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] At the punishment phase of trial, appellant admitted that he committed the robberies of Brown and Coleman, but not the robbery of Bazile, although he admitted to being present while Bazile was robbed. Under the prior DeGarmo doctrine, appellant would have waived these issues. See DeGarmo v. State, 691 S.W.2d 657 (Tex. Crim. App. 1985). The Court of Criminal Appeals, however, overruled, in part, DeGarmo and held that despite an admission of guilt during punishment, the defendant is entitled to appellate review of various issues, including sufficiency of the evidence. See Leday v. State, 983 S.W.2d 713, 724B26 (Tex. Crim. App. 1998).