COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-300-CR
DEMARKCUS L. CLARK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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OPINION
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I. Introduction
A grand jury indicted Appellant Demarkcus L. Clark on February 2, 2007. The
indictment alleged that on or about July 25, 2004, Appellant intentionally caused the
death of Keiss Allison by shooting him with a firearm during the course of committing
or attempting to commit robbery. 1 Appellant pleaded not guilty at his trial in August
2008. The jury found Appellant guilty of capital murder, and the trial court sentenced
him to life in prison. Appellant contends in two points that the evidence is factually
1
See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009).
insufficient to sustain his conviction and that he received ineffective assistance of
counsel. W e affirm.
II. Factual Background
At approximately 1 a.m. on July 25, 2004, Fort W orth police officers
responded to a reported shooting at an apartment complex. Officer James Chilson
was the first to arrive, and he testified that he saw the victim, Keiss Allison, lying in
the roadway approximately 100 feet from his apartment, with six or more people
standing nearby.
Christopher Carter testified that he lived with Allison at the time of the
shooting, that he met Allison while “running around looking for some dope,” that
Allison was a drug dealer, and that Allison supplied drugs to him in exchange for the
use of his car. Carter admitted he had abused drugs, specifically crack cocaine, the
day of the shooting, but he testified he had been “clean” for about a year as of the
time of trial. Carter also testified, however, that he was on parole from a fifty-year
sentence for unauthorized use of a motor vehicle.
Carter testified that a “kind of a chubby fellow” driving a brown or tan Buick
LeSabre or similar car had stopped at the apartment earlier on the night of the
shooting and asked for Allison. Carter told the man Allison was not there.
Carter last saw Allison in the apartment at approximately 9 p.m. the night of
the shooting when Carter left to go to the store with Tonya Fluker and other people
2
he did not know. 2 W hen he and the others returned from the store, Carter saw a
man he described as “a slim fella” in the apartment parking lot carrying a pistol-grip
shotgun. Carter testified that he did not see the man well enough to identify him for
the police but that the car he had seen earlier that night was “possibly” at the
apartment at the time. The man with the shotgun told the driver of the car that it
would be best if they left. Carter “bailed out of the truck, ran into the front of the
apartments[,] and . . . hid behind some trash cans.” He heard about three gunshots
while hiding. After he felt it was safe to do so, Carter emerged from his hiding place
and sat on the curb in front of the apartments. He admitted, however, that he
subsequently “kind of ran and ducked and dodged” the police for approximately two
years because he did not want to be involved.
Anthony Foreman testified that Allison was a friend and one of his drug
dealers. Foreman walked to Allison’s apartment about midnight the night of the
shooting to “do drugs,” and when he arrived, Allison and Christopher Henderson
were standing in the apartment doorway “rapping about [him] walking over there.”
Foreman testified that he, Allison, and Henderson had been standing by the gate
near Allison’s apartment when a gold Cutlass pulled into the parking lot. A heavy-
set, African-American man got out of the passenger-seat and walked up to the
fence. On Allison’s invitation, Allison and the man went inside the apartment
together. A slimmer African-American man then got out of the rear passenger-seat
2
Carter described Fluker as a “crackhead” that he and Allison knew from
“the life of dealing drugs.”
3
of the car, and Henderson told the man to wait outside. The slimmer man “got mad
and told [Henderson] that was his money and he was goin[g] in there about the
business, too.” Foreman testified that he was able to calm the man down for a
moment and that Allison opened the apartment door and invited the slimmer man
inside. Henderson also went inside after a few moments.
W hile Foreman waited outside, the slimmer man came out of the apartment
and walked to his car. At about the same time, the vehicle with Carter, Fluker, and
a man named “Fish” inside drove into the parking lot. The slimmer man talked to the
people in Fish’s car and then tapped on the trunk of the gold Cutlass “to alert the guy
on the inside to pop the trunk.” The driver of the car, who Foreman testified he saw
in the car but did not see his face, “popped his trunk button and [the slimmer man]
open[ed] the trunk and pulled out a 12-gauge.” Foreman testified that the slimmer
man walked up to him, pointed the shotgun at him, and told him to go inside the
apartment. Foreman refused and ran toward a church behind the apartments. As
he ran past a window to Allison’s apartment, Foreman heard Allison tell the men that
he was not going to give them anything else and that he had given them everything
he had. From the church, Foreman looked back, saw three people running away
from Allison’s apartment toward the parking lot, and heard five gunshots.
Foreman ran back to Allison’s apartment and went inside to see if anyone had
been shot. Not seeing anyone in the apartment, he went to a neighbor’s apartment
to ask her to call the police, but Foreman heard Fluker saying, “Here he is right
4
here.” Foreman then saw Allison lying in the middle of the street. Foreman testified
that the police interviewed him that night and that he went to the police station with
the officers “to let them know that [he] saw everything that happened.” On cross-
examination, Foreman testified that he had previous convictions for possession and
theft and that he was not able to identify anyone when a homicide detective showed
him a photo spread.
Detective Matthew Hardy testified that he was the homicide detective assigned
to the case and that he arrived at the scene approximately an hour and a half after
the shooting. Detective Hardy testified that he interviewed Foreman, Henderson,
and Fluker that night. 3 However, the investigation continued for more than two
years.
Detective Hardy interviewed Duron Gibson at the Tarrant County jail in
October 2005, and Gibson directed him to Appellant a/k/a “Dough Boy.” In January
2006, Detective Hardy spoke with Fort W orth narcotics officer Broadwater and a
confidential informant and was able to identify Issack Fountain as a possible
participant. Detective Hardy located Fountain and interviewed him at the
Department of Corrections in DeQuincy, Louisiana. In the interview, Fountain
minimized his own involvement and said that Appellant was the shooter.
Detective Hardy interviewed Appellant on August 21, 2006. In the interview,
Appellant denied that he knew Allison or what had happened to him. Appellant also
3
Fluker and Henderson did not testify at Appellant’s trial. Detective Hardy
said he unsuccessfully tried locating them before trial.
5
told Detective Hardy that Prinsell W illiams had used his name in the past. In fact,
Appellant was arrested during a federal drug investigation but later released after
investigators determined that W illiams had used Appellant’s name.
On August 22, 2006, Detective Hardy interviewed Carter and showed him a
photo spread that included pictures of Fountain and five other African-American
males. Carter identified Fountain and said, “[T]his kind of looks like the person who
came up to the car that he was in, who had the shotgun,” but Carter was not
completely positive of his identification. Detective Hardy prepared a different photo
spread that included Appellant’s photograph, but Carter was not able to identify
anyone in that photo spread.
Detective Hardy testified that between Fountain, Appellant, and Avion
Anderson, a man Appellant had implicated in Allison’s death, Appellant is physically
the largest and Fountain is the thinnest. Detective Hardy also said that the physical
descriptions in his file indicated that Fountain is five foot, ten inches and 160 pounds,
that Anderson is five foot, nine inches and 190 pounds, and that Appellant is five
foot, eleven inches and either 225 or 275 pounds. 4 Detective Hardy said that the
physical descriptions in his file are generally consistent with Fountain’s, Anderson’s,
and Appellant’s actual heights and weights.
4
The October 2004 physical description in Detective Hardy’s file listed
Appellant at 225 pounds, and the January 2006 description listed Appellant at 275
pounds.
6
Detective Hardy also interviewed Fluker and said she tentatively identified
Appellant in a photo spread. On the photo spread, Fluker wrote, “I believe to my
knowledge this man [Appellant] came to SUV I was in.” 5 Detective Hardy testified
that Fluker’s identification differed from the others; Fluker said the heavy-set man
retrieved the shotgun from the car and other witnesses said it was the skinnier man.
Detective Hardy also testified that Fluker did not identify Appellant as the man that
came to the car until she saw the photo spread.
Appellant was arrested on February 5, 2007. Detective Hardy interviewed him
later that day and obtained two written statements. In the first statement, Appellant
admitted being at Allison’s apartment with Fountain and Anderson to obtain cocaine
to sell but denied knowing Allison before that night. Appellant said that Henderson
pulled a pistol-grip shotgun while Fountain and Allison were “tussling, wrestling,” that
Fountain pulled a revolver and forced Henderson to the ground, that Allison pushed
Fountain off of Henderson and ran out the door, and that Fountain shot Allison.
Appellant also said that Fountain threatened to kill him and Anderson if they told
anyone what had happened and that Fountain had stolen some cocaine from the
apartment. Appellant wrote that he first learned that Allison had been killed about
three days after the shooting.
5
Appellant did not object to Detective Hardy’s testimony about Fluker’s
statements to him, the admission of the photo spread, or the inclusion of Fluker’s
written comment on the photo spread.
7
In the second statement, Appellant admitted that he did know Allison before
the night of the shooting, that he had met Allison at a dope house where a man
named “Hot Sauce” lived, and that he had told Fountain they could get some dope
to sell from Allison. Appellant stated that he and Fountain went to Allison’s
apartment earlier the night of the shooting, that Allison was not there at the time, and
that he and Fountain later returned to Allison’s apartment. Appellant wrote that after
he and Fountain went inside Allison’s apartment, Fountain told Allison to “give me
what you got,” pointed a revolver at Allison, and made Allison empty his pockets.
Appellant said that Fountain took the forty dollars Allison had in his pocket, that
Henderson pulled out a shotgun, and that Fountain pointed the revolver at
Henderson and made him get on the ground. Appellant stated that Anderson then
came through the door with the pistol-grip shotgun, that Henderson and Allison ran
out the door, and that Fountain fired five or six shots at Allison. 6
Detective Hardy testified that Appellant did not admit in either of his
statements to receiving any of the proceeds of the robbery, to disposing of the
cartridges from the revolver, or to having the intent before going to Allison’s
apartment to commit an offense other than purchasing drugs. Detective Hardy
agreed that Appellant admitted to being at the scene but did not admit to being a
6
Detective Hardy testified that he did not have enough corroborating
information from his investigation to charge Anderson with Allison’s murder. And
although the State called Anderson as a witness at trial, Anderson advised the trial
court outside the presence of the jury that he would refuse to testify because of three
pending felony cases.
8
party to the murder. Detective Hardy also testified that Appellant had given him
information about a murder Fountain had committed in 1997 or 1998, that he filed
a case against Fountain for that murder, and that the information Appellant provided
about that murder was accurate.
On cross-examination, Detective Hardy agreed that the majority of people he
interviewed in this case were involved with drugs in one way or another. He testified
that the family initially directed him to a person named Jonathan W illiams and that
he was aware of two different people known as “Dough Boy” in the Fort W orth area.
Detective Hardy also said that he prepared approximately ten photo spreads in the
case and that several people were not able to make any identifications.
Fountain testified that he is in custody for two murders and a federal drug
case. 7 He said that he is serving a thirty-five year sentence for the federal drug
case, that he pleaded guilty to two murders and received two sentences of twenty-
two years and six months to run concurrently, and that a condition of his State plea
bargain required him to testify truthfully in Appellant’s case. Fountain also said that
he had been on parole for a different felony drug case in Louisiana and that he had
other felony convictions in Tarrant County for attempted murder, evading arrest, and
detention of a vehicle.
7
Fountain testified that he pleaded guilty to murder in Allison’s death and
that he pleaded guilty to a 1997 or 1998 murder. As a matter of law, Fountain’s trial
testimony was that of an accomplice-witness. See Brown v. State, 270 S.W .3d 564,
567 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).
9
Fountain further testified that Appellant and Anderson are his cousins and that
Appellant is known as “Dough Boy.” Fountain said that he, Appellant, and Anderson
had smoked “weed” the night of the shooting and were at another cousin’s
apartment when Appellant started talking about “hitting a lick,” which he understood
to mean to commit a robbery. Fountain testified that Appellant said that he wanted
to “go hit a lick” on Allison and that Appellant called Allison to set up the robbery by
telling Allison that he needed to buy some drugs. Fountain said he understood from
Appellant that Allison had a lot of drugs and money. Fountain testified that he did
not know Allison before the night of the shooting.
Fountain said that he, Appellant, and Anderson went to Anderson’s sister’s
house to get three guns: a shotgun, a revolver, and a .45. Fountain said he had the
shotgun and Appellant had the revolver. Anderson drove to Allison’s apartment,
Appellant rode in the passenger seat, and Fountain rode in the back. Fountain
testified that when they arrived at the apartment, he saw Fish in the parking lot and
told Fish to leave. Fountain said that he and Appellant got out of the car, that
Anderson stayed in the car, and that he and Appellant went into the apartment with
Allison and another man he did not know. The man Fountain did not know initially
said they both could not go inside, but Allison invited them both into the apartment.
Fountain testified that Allison was “weighing up the dope” inside the apartment
and that Appellant pulled out a revolver and made Allison and the other man get on
the floor. Fountain then went to the car and retrieved a shotgun. Fountain said that
10
on his way back into the apartment, another man on the side of the building ran
through the gate. Fountain went back into the apartment, and Anderson followed
him inside. They were looking through the apartment for things to take in the
robbery when “all of a sudden [Allison] got up and ran.” Fountain testified that
Appellant shot Allison four or five times as Allison ran.
Fountain testified that after the shooting, he, Appellant, and Anderson went
to Fountain’s sister’s house and split up what they had stolen: “$1,500, about ten
grams of cocaine, crack[,] and a scale.” Fountain said he emptied the revolver after
the shooting and threw the rounds in the trash, even though it was Appellant’s gun,
because “when you do stuff like that with people, you’ve got to help clear yourself,
too, man. And that’s just part of what I did.” Fountain said that there was an
agreement among them to rob Allison but that there was no agreement for murder.
Fountain admitted on cross-examination that this was not the first “dope house” that
he had “jacked.”
Fountain testified that he recalled telling Detective Hardy that this type of
violence was not normal for Appellant. Fountain also said he was aware that a man
named Bertram Bell had claimed to have heard him brag to his girlfriend that he had
committed the murder. Fountain said his girlfriend testified in his federal case that
she did not know anything about Allison getting killed.
Kevin Spencer testified that he had known Appellant, Fountain, Anderson, and
Allison for several years before the shooting. He said that he was currently serving
11
a fifteen-year sentence in a federal penitentiary for conspiracy to distribute and
manufacture cocaine arising out of a federal drug investigation. Spencer testified that
the prosecutors had agreed to notify federal authorities of his assistance if he
testified truthfully in Appellant’s trial so that he could apply for “Rule 35 credit,” one
of only a few procedures he believed might potentially reduce his federal sentence.
Spencer testified that he talked with Appellant three different times after the
shooting and that Appellant told him, “I put my work in.” Spencer explained, “[i]n
street terms[,] when they say they ‘put their work in,’ you know, nine times out of ten
you’re going to shoot someone with the intention to kill them.” Spencer testified that
Appellant told him he shot Allison because Allison went for a gun, but he also said
Appellant bragged about having “put that work in” and seemed proud of having done
so. Spencer said Appellant told him people in the neighborhood “think I won’t put
the work in. I’m going to put the work in.” Spencer testified that he believed
Appellant wanted people to think he was a gangster and that killing Allison was a
way for Appellant to “make his point.” 8
Bertram Bell testified for Appellant. He said that he was brought to trial from
Florida where he is serving a twenty-year sentence for conspiracy to distribute
8
To impeach Spencer’s credibility, defense counsel asked Spencer if he
had anything to do with the murder of Appellant’s brother, Montrell Clark. Spencer
denied involvement, and Detective Michael Carroll testified that he investigated
Montrell’s murder, that Eddie Taylor was charged and pleaded guilty to murdering
Montrell, and that Spencer was never a suspect in Montrell’s murder.
12
arising out of a federal drug investigation. Bell testified that he told Detective Hardy
that he overheard a conversation between Fountain and his girlfriend in which
Fountain said that he and Appellant went to Allison’s apartment but that Appellant
stayed in the car and did not know what was happening. Bell admitted, however,
that he did not hear the entire conversation.
Bell testified that he was aware of Fountain always having a shotgun and that
Fountain had even pulled a shotgun on him when Fountain had tried to rob him in
the past. Bell told Detective Hardy during an interview that Fountain had a shotgun
and a .380. Bell testified that he likes Appellant and that he does not like Fountain. 9
Dr. Gary Sisler testified that he performed an autopsy on Allison’s body on
July 25, 2004. Dr. Sisler testified that Allison had an entry wound to his right lateral
forearm, an exit wound on the inside of his forearm, a re-entry wound to his right
chest, an entry wound to his back, and an entry wound near his abdomen. Dr. Sisler
also said that he recovered three bullets from Allison’s body. Dr. Sisler testified that
the wound to Allison’s chest was fatal, that the cause of death was multiple gunshot
wounds, and that he classified Allison’s death as a homicide. Robert Adkins, a
retired firearms examiner, testified that he examined the three bullets removed from
9
Assistant United States Attorney Mike Worley testified as a rebuttal witness
for the State. He said that he prosecuted many of the defendants in the federal drug
investigation, that Bell pleaded guilty in that case and provided information about
several defendants, and that Bell recanted his testimony as to all but one of the
defendants. W orley testified that the government could have asked the court to
rescind Bell’s plea agreement because he violated his plea agreement by recanting
his testimony.
13
Allison’s body and determined that all three bullets were fired from the same gun, a
Smith and W esson revolver.
III. Applicable Law
Section 19.03(a) of the penal code provides in pertinent part, “[a] person
commits [capital murder] if the person commits murder as defined under Section
19.02(b)(1) and . . . the person intentionally commits the murder in the course of
committing or attempting to commit . . . robbery.” Tex. Penal Code Ann. § 19.03(a).
Section 19.02(b)(1) of the penal code provides that a person commits murder if he
“intentionally or knowingly causes the death of an individual.” Id. § 19.02(b)(1)
(Vernon 2003). Section 29.02 of the penal code provides in relevant part that a
person commits robbery “if, in the course of committing theft . . . and with intent to
obtain or maintain control of the property, he . . . intentionally, knowingly, or
recklessly causes bodily injury to another.” Id. § 29.02(a)(1) (Vernon 2005).
IV. Sufficiency of the Evidence
In his first point, Appellant contends the evidence is factually insufficient to
sustain his capital murder conviction. 10 He argues that only unobjected-to hearsay
and testimony from a convicted felon corroborated the accomplice’s testimony.
Because it is unclear whether Appellant challenges the sufficiency of the evidence
corroborating his accomplice’s testimony, the factual sufficiency of the evidence, or
10
Appellant does not challenge the legal sufficiency of the evidence and
acknowledges that the evidence is legally sufficient to sustain his conviction because
of Carter’s testimony and Fluker’s hearsay identification of Appellant as a person at
the scene with a weapon.
14
both, we review the evidence for corroboration of the accomplice’s testimony and for
factual sufficiency.
A. Accomplice Witness Testimony
The accomplice-witness rule is a statutorily imposed sufficiency review and
is not derived from federal or state constitutional principles that define the legal and
factual sufficiency standards. Cathey v. State, 992 S.W .2d 460, 462–63 (Tex. Crim.
App. 1999), cert. denied, 528 U.S. 1082 (2000). An accomplice is a person who
participates before, during, or after the commission of the crime and can be
prosecuted for the same offense as the defendant or for a lesser-included offense.
Medina v. State, 7 S.W .3d 633, 641 (Tex. Crim. App. 1998). Fountain is an
accomplice as a matter of law because he was also charged with and pleaded guilty
to Allison’s murder. See Brown, 270 S.W .3d at 567 (stating witness in capital
murder case was accomplice as a matter of law because he “participated in the
crime and . . . was subsequently convicted of aggravated robbery in accordance with
a plea agreement for his participation”). Article 38.14 of the code of criminal
procedure provides that “[a] conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending to connect the defendant
with the offense committed; and the corroboration is not sufficient if it merely shows
the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14.
W hen evaluating the sufficiency of corroboration evidence under the
accomplice-witness rule, we “eliminate the accomplice testimony from consideration
15
and then examine the remaining portions of the record to see if there is any evidence
that tends to connect the accused with the commission of the crime.” Malone v.
State, 253 S.W .3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v. State, 49
S.W .3d 356, 361 (Tex. Crim. App. 2001)). The corroborating evidence need not
prove the defendant’s guilt beyond a reasonable doubt by itself. Id.; Trevino v.
State, 991 S.W .2d 849, 851 (Tex. Crim. App. 1999). Nor is it necessary for the
corroborating evidence to directly link the accused to the commission of the offense.
Cathey, 992 S.W .2d at 462. Rather, the evidence must simply link the accused in
some way to the commission of the crime and show that “rational jurors could
conclude that this evidence sufficiently tended to connect [the accused] to the
offense.” Simmons v. State, 282 S.W .3d 504, 508 (Tex. Crim. App. 2009).
Additionally, “[p]roof that the accused was at or near the scene of the crime at or
about the time of its commission, when coupled with other suspicious circumstances,
may tend to connect the accused to the crime so as to furnish sufficient
corroboration to support a conviction.” Malone, 253 S.W .3d at 257 (quoting Brown
v. State, 672 S.W .2d 487, 489 (Tex. Crim. App. 1984)). But “mere presence alone
of a defendant at the scene of a crime is insufficient to corroborate accomplice
testimony.” Id. (quoting Golden v. State, 851 S.W .2d 291, 294 (Tex. Crim. App.
1993)).
Here, the evidence offered to corroborate Fountain’s testimony begins with
Appellant’s written statements to Detective Hardy. In the written statements,
16
Appellant admitted that he was inside Allison’s apartment with Fountain at the time
of the shooting. In addition, Spencer testified that Appellant told him on three
occasions that he “put his work in,” that “putting your work in” meant shooting
someone with the intent to kill, and that Appellant bragged about killing Allison. This
evidence tends to connect Appellant to the commission of the offense alleged in the
indictment. See Brown, 270 S.W .3d at 568 (stating that “under most circumstances,
an admission or confession will be sufficient to corroborate the accomplice-witness
testimony” and holding that accomplice testimony sufficiently corroborated by
admitted perjurer who testified Brown acted unusually the day of the offense and
admitted to being at the scene). The fact that Spencer’s testimony may have been
subject to impeachment as coming from an admitted felon goes to the weight of the
evidence, not to its admissibility, and was within the province of the jury as the
exclusive judge of the credibility and the weight to be given Spencer’s testimony.
See id. Consequently, we hold that Fountain’s testimony was sufficiently
corroborated and was properly considered by the jury under the requirements of
article 38.14. See Tex. Code Crim. Proc. Ann. art. 38.14. We overrule this portion
of Appellant’s first point.
B. Factual Sufficiency
1. Standard of Review
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
17
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,
with some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts the verdict. Watson, 204
S.W .3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must
give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson v.
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.
Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417. Unless
the record clearly reveals that a different result is appropriate, we must defer to the
jury’s determination of the weight to be given contradictory testimonial evidence
because resolution of the conflict “often turns on an evaluation of credibility and
demeanor, and those jurors were in attendance when the testimony was delivered.”
18
Johnson, 23 S.W .3d at 8. Our deference in this regard safeguards the defendant’s
right to a trial by jury. Lancon v. State, 253 S.W .3d 699, 704 (Tex. Crim. App. 2008).
2. The Evidence is Factually Sufficient
Having determined that Fountain’s accomplice-witness testimony was
sufficiently corroborated, we now analyze all the evidence—including Fountain’s
testimony—in a neutral light to determine if factually sufficient evidence exists to
support Appellant’s conviction. See Steadman, 280 S.W .3d at 246.
Reviewing all the evidence in a neutral light, we recall that many of the people
Detective Hardy interviewed in this case were involved with drugs in one way or
another, that Detective Hardy prepared approximately ten photo spreads in the case,
that several people were not able to make any identifications, that Allison’s family
initially directed Detective Hardy to Jonathan W illiams, that Detective Hardy knew
of at least two people in the area known as “Dough Boy,” and that Appellant was
mistakenly arrested in a federal drug case because someone else had used
Appellant’s name. W e also recall that Fluker tentatively identified Appellant in a
photo spread as the person that approached her car in the apartment parking lot and
that Fluker’s identification differed from the others because she said the heavy-set
man, not the skinnier man, retrieved the shotgun from the car. Further, Carter, on
parole from a fifty-year sentence, identified Fountain from a photo spread as the
man outside the apartment with the shotgun, but Carter testified that he had used
crack the day of the shooting and that he did not see the man well enough to identify
19
him for the police. In addition, Appellant admitted to being at the scene of the
shooting, but did not admit to being a party to the murder, to receiving any of the
proceeds of the robbery, to disposing of the cartridges from the revolver, or to having
the intent before going to Allison’s apartment to commit an offense other than
purchasing drugs. There was also testimony from Bell that impeached Fountain’s
credibility and that Fountain had admitted to shooting Allison. And Fountain
admitted that he emptied the revolver after the shooting, that this was not the first
“dope house” that he had “jacked,” and that this type of violence was not normal for
Appellant. Finally, Spencer testified that Appellant bragged to him about shooting
Allison, but Spencer testified in exchange for the State’s agreement to notify federal
authorities of his cooperation.
However, the jury also heard evidence that Appellant admitted being at
Allison’s apartment with Fountain and Anderson to obtain cocaine to sell and that
Appellant told Spencer that he “put his work in,” meaning he shot Allison with the
intent to kill. Spencer said that Appellant bragged about having “put that work in,”
that Appellant seemed proud of having done so, that Appellant wanted people to
think he was a gangster, and that killing Allison was a way for Appellant to “make his
point.” Furthermore, Fountain testified that Appellant initiated the talk about robbing
Allison and that Appellant called Allison and told him he needed to buy some drugs
in order to set up the robbery. Fountain said he had the shotgun and Appellant had
the revolver. Fountain testified that he and Appellant went into the apartment with
20
Allison, that Appellant pulled out a revolver and made Allison and the other man get
on the floor, that Fountain then went to the car for the shotgun and returned to the
apartment, and that Appellant shot Allison four or five times after Allison got up and
ran. Fountain also testified that they had stolen “$1,500, about ten grams of
cocaine, crack[,] and a scale.” Finally, the firearms examiner testified that the three
bullets removed from Allison’s body were fired from a Smith and W esson revolver.
Moreover, we note that several witnesses corroborated extraneous parts of
Fountain’s testimony. For example, Carter testified that “a slim fella” with a shotgun
told him and others in his car to leave, and Detective Hardy said Carter tentatively
identified the man with the shotgun as Fountain from a photo spread. Further,
Foreman testified that Henderson initially told the skinnier man he could not go
inside the apartment with Allison, that the skinnier man entered but later walked out
of Allison’s apartment, talked to the people in Fish’s car, and retrieved a shotgun
from the car. The jury could have considered this testimony in weighing Fountain’s
credibility.
Finally, the fact that several witnesses are convicted felons does not
necessarily render the evidence factually insufficient. The witnesses were
impeached with evidence of their convictions, and the jury is the exclusive judge of
the credibility of the witnesses and of the weight to be given to their testimony. See
Johnson, 23 S.W .3d at 8 (describing difficulty in assessing credibility from “a cold
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appellate record” and stating credibility assessment “usually requires deference to
the jury’s conclusion”).
Viewing the evidence in a neutral light, we conclude a rational trier of fact
could have found beyond a reasonable doubt that Appellant intentionally or
knowingly caused the death of Allison in the course of committing or attempting to
commit robbery. See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2). Therefore,
we cannot say that the evidence is so weak that the jury’s determination is clearly
wrong or manifestly unjust or that the conflicting evidence so greatly outweighs the
evidence supporting the convictions that the jury’s determination is manifestly unjust.
See Lancon, 253 S.W .3d at 704; Watson, 204 S.W .3d at 414–15, 417. Accordingly,
we hold that the evidence is factually sufficient to support the jury’s verdict, and we
overrule the remainder of Appellant’s first point.
V. Effectiveness of Counsel
In his second point, Appellant contends that he received ineffective assistance
of counsel because his trial attorney did not object to Detective Hardy’s hearsay
testimony that Fluker identified Appellant as the person who approached her vehicle
with a weapon the night of the incident. The State responds that we should overrule
Appellant’s second point because Appellant did not file a motion for new trial to
develop the record and the record is silent concerning Appellant’s counsel’s
reasoning and strategy.
A. Standard of Review
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To establish ineffective assistance of counsel, Appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable probability
that, but for counsel’s deficiency, the result of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas
v. State, 163 S.W .3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W .3d
59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W .3d 808, 812 (Tex.
Crim. App. 1999). There is no requirement that we approach the two-pronged
inquiry of Strickland in any particular order, or even address both components of the
inquiry if the appellant makes an insufficient showing on one component. Strickland,
466 U.S. at 697, 104 S. Ct. at 2069.
A reviewing court will rarely be in a position on direct appeal to fairly evaluate
the merits of an ineffective assistance claim. Thompson, 9 S.W .3d at 813–14. “In
the majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W .3d
at 740 (quoting Mallett, 65 S.W .3d at 63). To overcome the presumption of
reasonable professional assistance, “any allegation of ineffectiveness must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id. (quoting Thompson, 9 S.W .3d at 813). It is not appropriate for
an appellate court to simply infer ineffective assistance based upon unclear portions
of the record. Mata v. State, 226 S.W .3d 425, 432 (Tex. Crim. App. 2007).
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B. Analysis
Detective Hardy testified that Fluker tentatively identified Appellant in a photo
spread. In addition, on State’s Exhibit 24, the photo spread from which Fluker
identified Appellant, Fluker had written, “I believe to my knowledge this man
[Appellant] come to SUV I was in.” Appellant did not object to Detective Hardy’s
testimony about Fluker’s statements to him, the admission of the photo spread, or
the inclusion of Fluker’s written comment on the photo spread. According to
Appellant, this unobjected-to hearsay, in combination with the testimony of a
convicted felon, placed Appellant at the scene and in possession of a pistol-grip
shotgun. W e note, however, that the jury also heard testimony by Detective Hardy
that Appellant admitted to being inside the apartment with Fountain and Anderson
when Allison was killed and testimony by Fountain that Appellant shot Allison.
Appellant did not file a motion for new trial, and the record is silent as to
defense counsel’s reasons for not objecting to Detective Hardy’s testimony or the
photo spread. Generally, a silent record that provides no explanation for counsel’s
actions will not overcome the strong presumption of reasonable assistance. See
Rylander v. State, 101 S.W .3d 107, 110 (Tex. Crim. App. 2003); Edwards v. State,
280 S.W .3d 441, 445 (Tex. App.—Fort W orth 2009, pet. ref’d).
Based on the record before us, in light of the strong presumption of
reasonable professional assistance by defense counsel, and in the absence of any
opportunity for defense counsel to explain his motive for not objecting to Detective
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Hardy’s testimony and the photo spread, we cannot say that Appellant has met his
burden of showing by a preponderance of the evidence that his trial counsel’s
representation fell below the standard of prevailing professional norms. See
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Rylander, 101 S.W .3d at 110;
Thompson, 9 S.W .3d at 813; Edwards, 280 S.W .3d at 445; see also Goodspeed v.
State, 187 S.W .3d 390, 392 (Tex. Crim. App. 2005) (stating that “trial counsel should
ordinarily be afforded an opportunity to explain his actions before being denounced
as ineffective”). W e overrule Appellant’s second point.
VI. Conclusion
Having overruled each of Appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER, DAUPHINOT, and W ALKER, JJ.
PUBLISH
DELIVERED: June 17, 2010
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