Affirmed and Memorandum Opinion filed October 18, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00968-CR
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VICTOR ALEJANDRO GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1062987
M E M O R A N D U M O P I N I O N
Appellant Victor Alejandro Garcia was convicted of aggravated robbery and sentenced to twelve years= imprisonment. In three issues, appellant contends that (1) the evidence is legally insufficient to prove that he used a firearm in the commission of the offense, (2) the evidence is factually insufficient to prove that he was the gunman, and (3) his counsel was ineffective for failing to object to an extraneous offense. We affirm.
I. Background
At around 10:30 p.m. on January 19, 2006, the complainant, Noe Garcia (no relation to appellant) parked his truck in his apartment complex=s parking lot and opened his door to get out when he saw a man standing nearby. The man pointed a black gun at the complainant=s chest from a distance of about a foot and half and demanded his keys and wallet, which caused the complainant to fear for his life. Although the robber was wearing a hooded shirt, the hood did not cover his face, which the complainant saw clearly with the aid of moonlight and the lights in the parking lot. One of the gunman=s two companions said they should hurry and leave, and so the gunman took the complainant=s keys and some money and left in the complainant=s truck. The complainant immediately called 911 and reported the robbery.
A few days later, police responded to a major freeway accident. Appellant had been driving the complainant=s truck and had wrecked it badly, killing a passenger. When the responding police realized the wrecked vehicle was stolen, they notified the robbery division. Robbery investigators created a photo line-up with appellant=s picture and showed it to the complainant, who identified appellant as the gunman. The complainant also identified appellant again at trial, stating that he had no doubt that appellant was the gunman. A jury convicted appellant, and this appeal followed.
II. Analysis
A. Use of a Firearm
In his first issue, appellant argues the evidence is legally insufficient to establish that he used a firearm in committing the offense. In evaluating a legal sufficiency claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19 (1979). Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In our review, we accord great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@ Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319).
A person commits an aggravated robbery if he uses or exhibits a deadly weapon in the commission of a robbery. Tex. Penal Code Ann. ' 29.03(a)(2) (Vernon 2003). When, as here, the State alleges in the indictment that the deadly weapon the defendant used during the aggravated robbery was a firearm, it must prove beyond a reasonable doubt that the deadly weapon was in fact a firearm. See Gomez v. State, 685 S.W.2d 333, 335B36 (Tex. Crim. App. 1985); Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Though a gun can be a firearm, the term Agun@ may include non-lethal instruments such as BB guns, blow guns, pop guns, and grease guns. Price v. State, 227 S.W.3d 264, 266 (Tex. App.CHouston [1st Dist.] 2007, no pet.); Arthur, 11 S.W.3d at 389. The jury, however, is free to draw reasonable inferences from the evidence, and absent any specific indication to the contrary at trial, the jury can reasonably conclude that a Agun@ used in the commission of a crime was a firearm. See Price, 227 S.W.3d at 266; Carter v. State, 946 S.W.2d 507, 510 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d).
Here, the complainant testified that appellant pointed a Ablack gun@ at his chest from a close distance and thereafter demanded his money and keys, causing the complainant to fear for his life. There was no indication at trial that the gun appellant used was anything other than a firearm. Further, the robbery investigator confirmed at trial that when the complainant explained that the robber had a Agun,@ he was referring to a firearm. Under these circumstances, the evidence is legally sufficient to support the jury=s conclusion that the gun was a firearm. See Price, 227 S.W.3d at 266B67 (finding sufficient evidence that gun was firearm based on victims= testimony that defendant pointed a gun in their face at close range during robbery and demanded money, causing victims to fear he might kill them); see also Edwards v. State, 10 S.W.3d 699, 701 (Tex. App.CHouston [14th Dist.] 1999) (A[A]ppellant=s threatening the [robbery] victims with the gun in itself suggests that it is a firearm rather than merely a gun of the non-lethal variety.@), pet. dismissed, improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002). Accordingly, we overrule appellant=s first issue.
B. Sufficiency of Identification Evidence
In his second issue, appellant argues the evidence is factually insufficient to support the jury=s conclusion that he was the robber who actually pointed the gun at the complainant. In conducting a factual sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Rather, we look at all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust or (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006). However, to overturn a finding that is founded on legally sufficient evidence, it is not enough that we may harbor a subjective level of reasonable doubt. See id. at 417. We cannot conclude that a finding is Aclearly wrong@ or Amanifestly unjust@ simply because, on the quantum of evidence admitted, we would have voted differently had we been the fact finder. See id. Nor can we declare that a conflict in the evidence justifies a new trial simply because we may disagree with the fact finder=s resolution of that conflict. See id. Rather, before ordering a new trial, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the verdict. See id. Our evaluation should not intrude upon the fact finder=s role to judge the weight and credibility to be given to any witness=s testimony. Cain, 958 S.W.2d at 408B09.
Appellant argues that the evidence is factually insufficient to prove that he was the gunman because the complainant=s initial description of the robbers to the police was vague and his later description of their heights and weights conflicted with the description he gave of them at trial. Mere contradiction in a witness=s trial testimony will not suffice to overturn a conviction for factual insufficiency. Turner v. State, 4 S.W.3d 74, 83 (Tex. App.CWaco 1999, no pet.); see also Duncantell v. State, No. 14-04-00971-CR, __ S.W.3d __, 2007 WL 2034245, at *5 (Tex. App.CHouston [14th Dist.] July 17, 2007, no pet. h.) (finding evidence factually sufficient, noting that jury properly resolved any conflicts in officer=s trial testimony). Reconciliation of any evidentiary conflicts falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). At trial, the complainant testified that the gunman was only one and a half feet away from him and that even though the gunman wore a hooded shirt, the hood did not cover his face. The complainant further explained that because of this, and because the parking lot was well lit with security lights and moonlight, he was able to get a good look at the gunman=s face and was sure it was appellant. We conclude the evidence is factually sufficient to support the jury=s conclusion that appellant was the gunman, and we overrule his second issue.
C. Assistance of Counsel
In his third issue, appellant argues his trial counsel was ineffective for failing to object to evidence he claims was inadmissible. To prove ineffective assistance of counsel, an appellant must show that (1) trial counsel=s representation failed to meet an objective standard of reasonableness, based on prevailing professional norms, and (2) the outcome of the proceeding would have been different but for counsel=s inadequate performance. Strickland v. Washington, 466 U.S. 668, 688B92 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We apply a strong presumption that counsel was competent and that counsel=s actions were reasonably professional and motivated by sound trial strategy. Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To rebut this presumption, an appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). An appellant usually cannot meet this burden unless an evidentiary record is developed to clearly show the reasons for counsel=s conduct. See Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). In the absence of a proper evidentiary record developed at a hearing on a motion for new trial or with an affidavit from trial counsel, it is extremely difficult to show that counsel=s performance was deficient. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); Tello v. State, 138 S.W.3d 487, 495 (Tex. App.CHouston [14th Dist.] 2004), aff=d, 180 S.W.3d 150 (Tex. Crim. App. 2005). When, as here, appellant did not file a motion for new trial and thus presented no affidavit or other evidence from counsel, we cannot conclude counsel=s representation was deficient unless her action was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We therefore review appellant=s grounds for ineffective assistance applying the strong presumption that counsel=s actions were reasonably professional and motivated by sound strategy. Thompson, 9 S.W.3d at 813.
At trial, the State called Officer Rosalie Stafford, who was one of the officers responding to the freeway accident involving appellant driving the complainant=s truck. At the beginning of her testimony, she described her duties as to A[i]nvestigate all major accidentsCaccident[s] involving fatalities and also police cars or fire trucks.@ She then confirmed that the accident at issue was a Amajor accident.@ Appellant claims counsel was ineffective for failing to object to this testimony, which he claims inflamed the jury by informing them that the accident resulted in a death. We disagree. First, it is not clear that Officer Stafford=s testimony was objectionable because she did not actually testify that the accident involved a fatality; rather, her testimony could have been interpreted as merely providing examples of the types of accidents she investigated. Further, counsel could have decided not to object because doing so would only emphasize the reference to fatalities, which was already vague at best. See Oliva v. State, 942 S.W.2d 727, 733 (Tex. App.CHouston [14th Dist.] 1997) (finding no deficient performance from counsel=s failure to object to prior conviction because his trial strategy could have been Ato avoid over-emphasis of the conviction@), pet. dismissed, improvidently granted, 991 S.W.2d 803 (Tex. Crim. App. 1998); Richards v. State, 912 S.W.2d 374, 381 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d) (concluding that not objecting to avoid shifting focus of trial to be valid trial strategy). Because sound trial strategy could have motivated counsel=s decision not to object, appellant has not met his burden of proving deficient performance. See Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813. Thus, we overrule appellant=s third issue.
Having overruled appellant=s three issues, we affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Judgment rendered and Memorandum Opinion filed October 18, 2007.
Panel consists of Justices Yates, Seymore, and Edelman.*
Do Not Publish C Tex. R. App. P. 47.2(b).
* Senior Justice Richard H. Edelman sitting by assignment.