Affirmed and Memorandum Opinion filed December 23, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00435-CR
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LORENZA CLAUDE WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1015612
M E M O R A N D U M O P I N I O N
Appellant Lorenza Claude Walker appeals his conviction for aggravated robbery, claiming factual insufficiency of the evidence, ineffective assistance of counsel at trial, and reversible error committed by the trial court in allegedly commenting on the relevance of appellant=s evidence. We affirm.
I. Factual and Procedural Background
Houston Police Department Officer Zufal responded to a call regarding an aggravated robbery at a bank. At the scene, the officer learned from the complainant that a man had held a knife to the complainant=s throat and demanded the complainant=s wallet. Officer Zufal learned that the suspect fled in a light-blue sedan with the complainant=s wallet. Though the bank=s security guard did not witness the robbery, the guard verified the complainant=s description of the fleeing vehicle. The guard also described appellant and the same vehicle driven by appellant based on the guard=s encounter with appellant earlier in the morning at the bank. Officer Zufal received a license plate number for the vehicle and recovered from the scene an electronic organizer, which was dropped by the perpetrator.
A police investigator traced the license plate number to the owner of the vehicle, who explained that she loaned the vehicle to appellant. The investigator created a photo spread using appellant=s driver=s license photo and other photos of people with physical features similar to appellant=s, from which the complainant and the security guard each independently identified appellant as the person they encountered at the bank.
The investigator learned that the vehicle was involved in an accident several hours after the robbery. Appellant admitted to officers investigating the accident that he was involved in a collision while driving that vehicle and that he left the scene of the collision. The description of the driver of the abandoned car, as relayed to the accident investigators by those involved in the collision, matched the description of the robber at the bank.
Appellant was charged with the offense of aggravated robbery, to which he pleaded, Anot guilty.@ At a jury trial, the State presented testimony from the investigating officers of both the robbery and the accident, the complainant, and the security guard. Appellant=s sister and employer testified on appellant=s behalf. The jury found appellant guilty as charged and assessed punishment at twenty-five years= confinement, based on enhancement paragraphs contained in the indictment.
II. Issues and Analysis
A. Is the evidence factually sufficient to support appellant=s conviction?
In his third issue, appellant challenges the factual sufficiency[1] of the evidence to support his conviction based on allegedly faulty witness identification of appellant as the suspect, appellant=s alibi evidence, the license plate number as unobjected-to hearsay, and the uninvestigated contents of the electronic organizer. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict. Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414B17. The reviewing court=s evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). In conducting a factual‑sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
A person commits the offense of robbery if, in the course of committing theft and with intent to obtain and maintain control of property, that person A(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. Penal Code Ann. ' 29.02 (Vernon 2003). The offense becomes aggravated robbery if the person committing the robbery causes serious bodily injury to another or uses or exhibits a deadly weapon. Id. ' 29.03(a)(1), (2) (Vernon 2003). A deadly weapon is considered Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ Id. ' 1.07(a)(17)(B) (Vernon 2003 & Supp. 2008); see McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (holding that a knife can be a deadly weapon if the actor exhibited it or intended to use it in a manner capable of causing death or serious bodily injury).
Appellant claims that the complainant=s and security guard=s identifications of him from the photo spread were faulty for the following reasons: (1) neither mentioned a tear-shaped tattoo under appellant=s right eye; (2) the guard testified that the pictures in the photo spread did not look the same; and (3) neither was shown a picture of another person who allegedly appears to look like appellant and who frequently drove that vehicle. Appellant also claims that weekly pay receipts from his landscaping job and the testimony of his sister and his boss supported an alibi that he was working at the time of the offense.
Appellant also claims that testimony regarding the license plate number was unobjected-to hearsay and that the complainant and guard did not confirm that the vehicle fleeing the bank was the same vehicle involved in the collision for which appellant acknowledged his involvement. Finally, appellant complains that the contents of the electronic organizer, dropped by the perpetrator and recovered from the scene, were not searched to confirm the identity of the owner. According to appellant, the contents of the electronic organizer might reveal that it belonged to someone else. However, the organizer did not contain batteries at the time it was recovered and no fingerprints were found on the device.
In this case, the investigator traced the license plate number of the vehicle seen fleeing the scene to the vehicle=s owner, who testified that appellant had borrowed the vehicle on the day in question. Appellant admitted to accident investigators that he drove the vehicle that day and abandoned it after the collision, several hours after the robbery occurred. When shown the photo spread, the complainant and the security guard each confirmed that appellant was the person each encountered at the bank who drove a light blue, four-door, American-made sedan that also matched the description of the vehicle in appellant=s collision. The complainant explained how he saw appellant=s face up-close multiple times and feared for his life when appellant held a knife to his throat before fleeing with the complainant=s wallet. Furthermore, the investigator and the complainant testified that the photo spread depicted similar photos of black men with similar facial features, age, height, and weight.
The testimony of a single eye-witness, such as the complainant in this case, is sufficient to support a felony conviction for aggravated robbery. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d). Furthermore, alibi evidence is one factor for the jury=s consideration, and the jury may choose to determine the weight of such evidence, as an evaluation of such evidence turns on credibility and demeanor. Id.; Davis v. State, 831 S.W.2d 839, 842 (Tex. App.CDallas 1992, pet. ref=d). Thus, the jury is free to accept or reject appellant=s alibi evidence. See Johnson, 176 S.W.3d at 78. Though appellant claims that the presence of his tattoo, his alibi evidence, the possibility of another suspect, and the guard=s testimony of the photo spread weaken the State=s evidence, a jury=s decision is not manifestly unjust simply because the jury resolved conflicting views of the evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Johnson, 176 S.W.3d at 78; Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d) (concluding inconsistency in testimony concerning location of a robber=s tattoo did not render evidence insufficient to support aggravated robbery conviction when jury was sole judge of credibility of witness testimony). The identity evidence, particularly the testimony of the vehicle owner who loaned the car to appellant and the complainant=s description of his attacker and the fleeing vehicle, is not so weak that the jury=s verdict is against the great weight and preponderance of the evidence. See Brown v. State, 212 S.W.3d 851, 864B65 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).
Viewing the evidence in a neutral light, we cannot say with some objective basis in the record that appellant=s conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict. See Watson, 204 S.W.3d at 417; Brown, 212 S.W.3d at 864B65; Johnson, 176 S.W.3d at 78. In light of the evidence presented, we hold that the evidence is factually sufficient to support appellant=s conviction for aggravated robbery. See Johnson, 176 S.W.3d at 78; see also Brown, 212 S.W.3d at 864B65. Accordingly, we overrule appellant=s third issue.
B. Did appellant receive ineffective assistance of counsel?
In his second issue, appellant claims that he was denied his Sixth Amendment right to effective assistance of counsel when his trial counsel failed to contest, on extraneous-offense evidence grounds, the admissibility of the multi-car collision in which appellant had previously admitted driving the vehicle and fleeing the scene of the accident. The vehicle was involved in the collision within several hours of the robbery and matched the license plate number of the vehicle seen fleeing from the bank.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B92; 104 S. Ct. at 2064B67. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). There was no motion for new trial filed in this case.
To prevail in his argument, appellant must show that not only was his trial counsel=s failure to object error, but that the error was of such a magnitude as to Aundermine confidence in the outcome.@ See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. When an appellant claims his trial counsel failed to object to the introduction of extraneous offenses, a claim of ineffective assistance of counsel will fail unless the evidence was inadmissible and admission of the evidence probably affected the outcome of the trial. Cooper v. State, 707 S.W.2d 686, 688 (Tex. App.CHouston [1st Dist.] 1986, pet. ref=d).
The record reflects that appellant=s trial counsel objected on hearsay grounds to testimony of the accident report of the collision. Presuming, without deciding, that appellant=s trial counsel performed deficiently in failing to object to the collision evidence on extraneous-evidence grounds, appellant failed to show that there is a reasonable probability that but for his trial counsel=s failure to object to the evidence, the outcome of the proceeding would have been different. See Chapa v. State, No. 04-07-00326-CR, 2008 WL 2601823, at *3 (Tex. App.CSan Antonio July 2, 2008, no pet.) (mem. op., not designated for publication). Given the evidence such as the license plate number of the vehicle fleeing the robbery scene, the vehicle owner=s testimony about loaning the vehicle to appellant, and the complainant=s identification of appellant from the photo spread, we cannot conclude that the outcome would have been different had appellant=s counsel objected to the evidence on extraneous-evidence grounds and the evidence of the collision had been excluded. See Chapa, 2008 WL 2601823, at *3. Moreover, even if the collision evidence were inadmissible, on this silent record appellant has not rebutted the strong presumption that trial counsel=s actions were competent and may have been an appropriate trial strategy. See Jackson, 877 S.W.2d at 771B72; Delrio v. State, 840 S.W.2d 443, 446B47 (Tex. Crim. App. 1992); London v. State, No. 14-97-01277-CR, 1999 WL 694725, at *4 (Tex. App.CHouston [14th Dist.] Sept. 9, 1999, pet. ref=d) (not designated for publication) (holding that failure to object to extraneous-offense evidence of drug use in an aggravated robbery trial was not ineffective assistance of counsel). Therefore, appellant=s trial counsel=s failure to object on these grounds does not constitute ineffective assistance of counsel. See London, 1999 WL 694725, at *4. Accordingly, we overrule appellant=s second issue.
C. Did the trial court improperly comment on the appellant=s alibi evidence?
In his first issue, appellant claims reversible error occurred when the trial court improperly commented on the relevance of pay reciepts offered by the appellant in support of his alibi defense. Through the testimony of his employer, who is also appellant=s sister=s boyfriend, appellant sought to introduce as evidence pay receipts from his job as proof that he was working on the day of the robbery. Appellant complains of the trial court=s remarks in the following exchange during appellant=s employer=s testimony when the receipts were offered and admitted:
[DEFENSE COUNSEL]: Okay. Now, Defense Exhibits 2 and 3, now that they are in evidence would you tell the jury what those documents are?
[WITNESS]: Oh, they=re receipts from previous pay periods.
[DEFENSE COUNSEL]: Okay. And you wrote those out.
[WITNESS]: Yes.
[TRIAL COURT]: Before we get into that, I fail to see the relevance of these receipts unless they are specifically on the date in question as to the alleged offense.
[DEFENSE COUNSEL]: They are. Your Honor, I=ll be glad to show the Court the date if you=d like to see them.
[TRIAL COURT]: Yeah, I would like to see them, please.
(Evidence tendered)
[TRIAL COURT]: I see none of these receipts on the date in question within the indictment this offense hasBis alleged to have been committed so I don=t see the relevance of this counsel.
[DEFENSE COUNSEL]: Your honor, may I state the relevance?
[TRIAL COURT]: Very briefly please.
. . .
[TRIAL COURT]: These are receipts fromBreceipts to show monies received from Advantage Cleaning, right?
[DEFENSE COUNSEL]: Your Honor, I would elicit testimony to explain what the receipts show.
[TRIAL COURT]: That=s what it says, Counsel, from Advantage Cleaning. I really don=t see the relevance of anything in this document that pertains to December 10th. So I=ll give you a very brief amount of time to try toBto document each, if you will please.
[DEFENSE COUNSEL]: Your Honor, with all due respect, we would object to the Court commenting on the evidence.
[TRIAL COURT]: I have a right to proceed and make sure that this is run expediently. If I don=t believe that is of any value to the Jury, I have a right to not allow you to go into wasting time. And that=s exactly what I=m doing to ensure that whatever you spend time on is of value to the disposition of this case. Otherwise I=ll just tell you, no, you can=t go into it. So do it very quickly or don=t do it at all.
Article 38.05 of the Texas Code of Criminal Procedure prohibits the trial court from commenting on the weight of the evidence. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). Without deciding whether the trial judge=s statements constitute an impermissible comment on the weight of the evidence, we conclude appellant has waived this complaint because he did not timely object to the trial court=s statements. See Tex. R. App. P. 33.1(a). As a general rule, to preserve a complaint for review on appeal, a party must have made a timely, specific objection to the trial court. See Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996); Peavey v. State, 248 S.W.3d 455, 470 (Tex. App.CAustin 2008, pet. ref=d). A party must object at the earliest possible opportunity to improper comments by the trial court regarding the weight of the evidence, and the objecting party must obtain an adverse ruling. Davis v. State, 177 S.W.3d 355, 363 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (en banc); see Peavey, 248 S.W.3d at 470. Generally, failure to timely object waives all error unless the statement is so prejudicial that no instruction could have cured the harm. See Peavey, 248 S.W.3d at 470; Davis, 177 S.W.3d at 363. A defendant=s failure to timely object to the trial judge=s comments waives any error and nothing is presented for review. See Williams v. State, 191 S.W.3d 242, 251, 252B54 (Tex. App.CAustin 2006, no pet.). Thus, a claim that the trial court improperly commented on the weight of the evidence or conveyed an opinion of the case is forfeited by inaction or belated action. See Peavey, 248 S.W.3d at 470; Martinez v. State, 147 S.W.3d 412, 419 (Tex. App.CTyler 2004, pet. ref=d); Moore v. State, 907 S.W.2d 918, 923 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d).
In this case, appellant did not timely object to the trial court=s statements, and, therefore, did not preserve error for review. See Peavey, 248 S.W.3d at 470; Davis, 177 S.W.3d at 363. Appellant objected to the trial court=s comment only after the trial judge thrice made the same comment regarding the relevance of the pay receipts. See Davis, 177 S.W.3d at 363 (objecting and asking for curative instruction one day later). A claim, as in this case, that the trial judge improperly commented on the weight of the evidence, is forfeited by inaction or belated action. See Peavey, 248 S.W.3d at 470; Davis, 177 S.W.3d at 363; Martinez, 147 S.W.3d at 419; Moore, 907 S.W.2d at 923. Accordingly, we overrule appellant=s first issue.
Having found no merit in any of appellant=s issues, we affirm the judgment of the trial court.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Anderson and Frost and Senior Justice Hudson.*
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Because a factual-sufficiency review begins with the presumption that the evidence supporting the jury=s verdict is legally sufficient, and because appellant challenges only the factual sufficiency of the evidence, appellant effectively concedes the evidence is legally sufficient to sustain the conviction. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).
* Senior Justice J. Harvey Hudson sitting by assignment.