Octavious Lamar Rhymes v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-16-00222-CR

OCTAVIOUS LAMAR RHYMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 76th District Court
Camp County, Texas
Trial Court No. CF-15-1523

Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Burgess
 OPINION
After their original plan to plant illicit drugs in Ernest Lee Ibarra, Jr.’s, truck was

abandoned, Johnathan Sanford, Jose Ponse, and Octavious Lamar Rhymes quickly devised another

plan: they would kidnap and murder Ibarra instead. Within hours, they kidnapped Ibarra from his

Titus County home and transported him to some isolated woods in Camp County where he was

shot to death. Consequently, Sanford, Ponse, and Rhymes were each charged with aggravated

kidnapping1 in Titus County and with murder2 in Camp County.

Sanford and Ponse pled guilty to the charges and were sentenced to fifty years’

imprisonment for both the aggravated kidnapping and the murder convictions, with the sentences

to run concurrently. After a jury trial, Rhymes was convicted in Titus County of aggravated

kidnapping and was sentenced to twenty-three years’ imprisonment.3 Rhymes was later tried in

Camp County, where a jury convicted him of murder and assessed him seventy-five years’

imprisonment, which the trial court ordered to be run consecutively to his Titus County sentence.

In his first point of error, Rhymes (1) challenges the sufficiency of the evidence supporting

his conviction and (2) complains that the trial court failed to include an accomplice-witness

instruction in its jury charge.4 In his second point of error, Rhymes asserts that the trial court erred

1
See TEX. PENAL CODE ANN. § 20.04 (West 2011).
2
See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
3
Rhymes dismissed his appeal of the Titus County conviction.
4
Although Rhymes asserts this issue in support of his sufficiency issue and asks us to disregard the accomplice
testimony, we consider all of the evidence received at trial in our sufficiency review. See Hall v. State, 161 S.W.3d
142, 148 (Tex. App.—Texarkana 2005, pet. ref’d). Therefore, we will treat this issue as asserting jury charge error.
To the extent Rhymes’ complaint is that the non-accomplice corroborating evidence is insufficient, we find in our

2
in overruling his motion to quash the indictment because of prosecutorial and judicial

vindictiveness. In his third point of error, Rhymes asserts that he received ineffective assistance

of counsel at trial. Because we find (1) that sufficient evidence supports the conviction, (2) that

any jury charge error was harmless, (3) that the trial court did not err in denying Rhymes’ motion

to quash, and (4) that ineffective assistance of counsel has not been shown, we will affirm the trial

court’s judgment.

I. The Trial Court’s Error in Failing to Give a Proper Accomplice-Witness Instruction
Was Harmless

A. Introduction

We first address Rhymes’ complaint that the trial court erred in failing to given an

accomplice-witness instruction.

B. Standard of Review

We review an alleged error in an accomplice-witness instruction under the procedural

framework of Almanza.5 Zamora v. State, 411 S.W.3d 504, 512 (Tex. Crim. App. 2013) (citing

Casanova v. State, 383 S.W.3d 530, 533 (Tex. Crim. App. 2012); Herron v. State, 86 S.W.3d 621,

631–32 (Tex. Crim. App. 2002); Medina v. State, 7 S.W.3d 633, 642 (Tex. Crim. App. 1999)).

Under this framework, we employ a two-step process in our review of the alleged error. See

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether

error occurred and then evaluate whether sufficient harm resulted from the error to require

charge error analysis that such evidence is sufficient. Additionally, we note that Rhymes did not object or request
additional instructions to the jury charge at trial.
5
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
3
reversal.” Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing

Abdnor, 871 S.W.2d at 731–32). In examining the charge for possible error, appellate courts “must

examine the charge as a whole instead of a series of isolated and unrelated statements.” Dinkins

v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). Only if we find error do we analyze that

error for harm. See Abnor, 871 S.W.2d at 731.

C. Analysis

1. The Trial Court Failed to Give a Proper Accomplice Witness
Instruction

Sanford participated in the kidnapping and murder, and he pled guilty to the aggravated

kidnapping and murder of Ibarra. Therefore, he was an accomplice as a matter of law. Hall v.

State, 161 S.W.3d 142, 149 (Tex. App.—Texarkana 2005, pet. ref’d). “If a witness is an

accomplice as a matter of law, the trial court is required to provide an accomplice-witness

instruction to the jury.” Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). The

instruction must explain the definition of an accomplice and inform the jury that the witness is an

accomplice as a matter of law. Zamora, 411 S.W.3d at 510. It must also instruct the jury regarding

the requirements of Article 38.14. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005);

Zamora, 411 S.W.3d at 510.

If a State witness is an accomplice as a matter of law, the trial court has a duty to include a

proper accomplice-witness instruction in its jury charge, and failure to do so is error. Herron v.

State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). In this case, although the trial court instructed

the jury regarding the requirements of Article 38.14, it failed to include the definition of an

4
accomplice and identify Sanford as an accomplice as a matter of law. Therefore, the trial court

erred in failing to give a proper accomplice-witness instruction.

2. The Trial Court’s Error Did Not Harm Rhymes

Next, we must determine whether Rhymes was harmed by the trial court’s omission.

“Where the evidence clearly shows a witness is an accomplice as a matter of law, the trial court

must so instruct the jury, but if the appellant fails to object to the omission of the instruction, as in

[Rhymes’] case, he or she must prove egregious harm to prevail on appeal.” Hall, 161 S.W.3d at

149. Article 38.14 provides, “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.

The purpose of this instruction is to inform “the jury that it cannot use the accomplice

witness testimony unless there is also some non-accomplice witness evidence connecting the

defendant to the offense.” Herron, 86 S.W.3d at 632. Generally, in an egregious harm analysis,

“non-accomplice evidence can render harmless a failure to submit an accomplice witness

instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.” Id.

However, there may be harm if “the corroborating (nonaccomplice) evidence is ‘so unconvincing

in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’”

Hall, 161 S.W.3d at 150 (quoting Herron, 86 S.W.3d at 632).

To evaluate the sufficiency of corroboration evidence, we eliminate the accomplice-

witness testimony from our consideration and examine the non-accomplice evidence “to ascertain

5
if there is evidence which tends to connect the accused with the commission of the offense.”

Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997) (citing Reed v. State, 744 S.W.2d

112, 125 (Tex. Crim. App. 1988)); Burks v. State, 876 S.W.2d 877, 887 (Tex. Crim. App. 1994);

Hall, 161 S.W.3d at 150. The non-accomplice evidence need not establish guilt beyond a

reasonable doubt or directly link the defendant to the crime. Hernandez, 939 S.W.2d at 176; Gill

v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). Rather, “[t]he accomplice witness rule is

satisfied if there is some non-accomplice evidence which tends to connect the accused to the

commission of the offense alleged in the indictment.” Hernandez, 939 S.W.2d at 176 (citing Gill,

873 S.W.2d at 48 (citing Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991), cert. denied,

509 U.S. 922 (1993)); Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992)).

Evidence placing the defendant “in the company of the accomplice at or near the time or

place of the offense is proper corroborating evidence.” McDuff v. State, 939 S.W.2d 607, 613

(Tex. Crim. App. 1997) (citing Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App. 1988);

Burks, 876 S.W.2d at 887–88). Further, “[i]n determining the strength of the particular item of

nonaccomplice evidence, we must examine (1) its reliability or believability, and (2) the strength

of its tendency to connect the defendant to the crime.” Hall, 161 S.W.3d at 150 (citing Herron,

86 S.W.3d at 632).

In this case, the non-accomplice evidence consisted of: (1) Rhymes’ admissions that (a) he

knew of the plan to murder Ibarra, (b) he assisted in obtaining the gloves used in the murder, (c) he

assisted in the kidnapping of Ibarra, (d) he participated in taking Ibarra into the woods, and (e) he

saw Ponse shoot Ibarra; (2) the facts that Rhymes received warning text messages from Wohlford

6
during the timeframe that Ibarra was being transported to the woods and shortly after the murder;

and (3) the fact that the murder weapon was found underneath Rhymes’ residence. Although the

location of the murder weapon could be attributed to Ponse, who was also residing at Rhymes’

house, we find that the remaining evidence is reliable and clearly connects Rhymes to the murder.

Therefore, we hold that the trial court’s error was harmless and overrule this issue.

II. Legally Sufficient Evidence Supports the Jury’s Verdict

A. Standard of Review

We next consider Rhymes’ complaint regarding the sufficiency of the evidence. In

evaluating legal sufficiency,6 we review all the evidence in the light most favorable to the trial

court’s judgment to determine whether any rational jury could have found the essential elements

of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State,

305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). In our review, we focus on the

quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). Legal

sufficiency is reviewed under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007). In drawing reasonable inferences, the jury “may use common sense

6
In support of his sufficiency complaint, Rhymes asserts that the trial court erred in denying his motion for directed
verdict asserted at the conclusion of the State’s case-in-chief. A complaint about the denial of a motion for directed
verdict is treated as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.
Crim. App. 1996).
7
and apply common knowledge, observation, and experience gained in the ordinary affairs of life.”

Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. denied) (citing Manrique

v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring)). Further, the jury

is the sole judge of the credibility of the witnesses and the weight to be given their testimony and

may “believe all of a witnesses’ testimony, portions of it, or none of it.” Thomas v. State, 444

S.W.3d 4, 10 (Tex. Crim. App. 2014). We give “almost complete deference to a jury’s decision

when that decision is based upon an evaluation of credibility.” Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008).

In our review, we consider “events occurring before, during and after the commission of

the offense and may rely on actions of the defendant which show an understanding and common

design to do the prohibited act.” Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d

107, 111 (Tex. Crim. App. 1985)). It is not required that each fact “point directly and

independently to the guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Id. “Circumstantial evidence and direct

evidence are equally probative in establishing the guilt of a defendant, and guilt can be established

by circumstantial evidence alone.” Paroline v. State, No. 06-16-00101-CR, 2017 WL 1178637,

at *4 (Tex. App.—Texarkana 2017, no pet. h.) (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex.

Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex.

Crim. App. 2004)).

Legal sufficiency of the evidence is 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).

8
The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id. Under the indictment and the statute, the State was required to show

beyond a reasonable doubt that, on or about February 20, 2015, Rhymes (1) either acting alone or

as a party, (2) intentionally or knowingly (3) caused the death of (4) Ibarra. See TEX. PENAL CODE

ANN. § 19.02(b)(1). Rhymes challenges the sufficiency of the evidence supporting a finding that

anyone intentionally caused Ibarra’s death, or that he was criminally responsible 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. PENAL CODE ANN. § 7.01(a) (West 2011). “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. PENAL CODE ANN. § 7.02(a)(2) (West 2011); In re State ex rel. Weeks, 391

S.W.3d 117, 124 (Tex. Crim. App. 2013). In determining whether an appellant is a party to an

offense, we may consider “events before, during, and after the commission of the offense.” Gross

v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (quoting Wygal v. State, 555 S.W.2d 465,

468–69 (Tex. Crim. App. 1977)). We may consider circumstantial evidence and look to the actions

of the defendant showing an understanding and common design to commit the offense. Ransom

v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (citing Cordova v. State, 698 S.W.2d 107,

111 (Tex. Crim. App. 1985)).

9
 “Proof of a culpable mental state is often made by circumstantial evidence.” Louis v. State,

329 S.W.3d 260, 268 (Tex. App.—Texarkana 2010), aff’d, 393 S.W.3d 246 (Tex. Crim. App.

2012) (citing Dunn v. State, 13 S.W.3d 95, 98–99 (Tex. App.—Texarkana 2000, no pet.)). In

determining a defendant’s state of mind, the jury may consider all of the circumstances. Smith v.

State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998). The jury may infer the requisite mental state

from (1) the acts, words, and conduct of the defendant, (2) the extent of the injuries to the victim,

(3) the method used to produce the injuries, and (4) the relative size and strength of the parties.

Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); Duren, 87 S.W.3d at 724. In

homicide prosecutions, although the intent to kill may not be presumed, “the jury may . . . infer

intent from any facts in evidence which it determines proves the existence of [an] intent to kill,

such as the use of a deadly weapon.” Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003)

(citing Hall v. State, 418 S.W.2d 810, 812 (Tex. Crim. App. 1967)).

B. Summary of the Evidence

In the State’s case-in-chief, Sanford provided many of the details surrounding the

kidnapping and murder of Ibarra. Sanford testified that he had already been convicted for those

offenses. He met Samantha Wohlford, Ibarra’s wife, on February 14, 2015, through a mutual

friend, Sharla Kemp. Five days later, Sanford, Rhymes, and Wohlford were at the Titus County

Regional Medical Center visiting Kemp, who had had a baby. Wohlford began complaining to

Sanford and Rhymes about Ibarra abusing her, and the three devised a plan to plant

methamphetamine in Ibarra’s vehicle and make an anonymous tip to the police.

10
 Around 9:00 that night, the three obtained the methamphetamine from Rhymes’ cousin in

Mount Vernon. They then returned to Rhymes’ house in Pittsburg where Ponse was cooking

enchiladas with his girlfriend. After Sanford shared with Ponse the plan to “set up” Ibarra, the two

decided it would be better to find a way that did not involve the police. They joked with Rhymes

that it would be better to just kill Ibarra, but rather quickly the joke became their serious plan.

Sanford testified that Rhymes was present and participating throughout all of this, although he was

not sure Rhymes fully understood. He testified that their plan was to kidnap Ibarra, then take him

to a remote location in Camp County and kill him.

Sanford and Rhymes then took Wohlford and her children to her house and removed the

toddler’s car seats from Wohlford’s vehicle. Next, Sanford and Rhymes took enchiladas to Kemp

at the hospital7 and then went to Walmart, where they shoplifted three pairs of black gloves from

the sporting goods department. Sanford also identified still shots taken from a Walmart security

camera as showing Rhymes and him entering Walmart at 12:12 a.m. on February 20. 8 After

leaving Walmart, Sanford and Rhymes returned to Rhymes’ house, picked up Ponse, and

proceeded to Ibarra’s and Wohlford’s residence wearing the gloves obtained at Walmart.

At the residence, they gained entrance through the front door, which was left unlocked by

Wohlford. They proceeded upstairs, where Sanford pulled Ibarra from the bed while Rhymes took

Wohlford downstairs to make sure she was not injured. After Sanford and Ponse beat Ibarra into

7
Sanford identified a still shot taken from the security camera outside of Kemp’s hospital room as showing Rhymes
leaving Kemp’s room at 11:57 p.m. on February 19, 2015.
8
The State also introduced video recordings and still shots from Walmart from the morning of February 20 showing
the same two individuals going to the sporting goods department, picking up gloves, and then leaving Walmart at
12:18 a.m.
11
submission, they took him downstairs, where they continued the beating. To give Wohlford a

cover story, Sanford and Ponse told Ibarra that he was being beaten and kidnapped because his

father owed them money. Rhymes then took Wohlford upstairs where he was to tell her that they

were going to handle the rest and to wait until Sanford contacted her.

Meanwhile, Ibarra’s hands were tied behind his back with painter’s masking tape, and he

was taken outside. Sanford and Ponse leaned Ibarra against his truck, then they rummaged through

the truck. Rhymes came outside and struck Ibarra in the mid-lower back with a small log. Rhymes

and Ponse then hurriedly forced Ibarra into the back of Wohlford’s vehicle, and they got in the

vehicle.

They then proceeded to Sand Crossing in Camp County, where they removed Ibarra from

the vehicle and forced him to walk on a game trail through the woods. Sanford led Ibarra, with

Ponse and Rhymes following. About fifty yards into the woods, Ibarra tripped and fell face down.

As he got back up to his knees, Ponse shot him in the back of the head. After confirming that

Ibarra was dead, they returned to Rhymes’ house, where they removed their clothes and burned

them.

Sanford and Ponse then drove to the hospital to pick up Kemp, who was being released

that morning. As Sanford and Ponse were leaving the hospital, they were detained by Titus County

deputies. Sanford confessed later that day and took the deputies to Ibarra’s body. He also took

them to the murder weapon at Rhymes’ house. Sanford also testified that Rhymes never objected

to their plan and never indicated that he was not completely in agreement with it.

12
 On cross-examination, Sanford testified that he was surprised when Ponse shot Ibarra. He

also testified that he was the one that organized the plan, but that Ponse and Rhymes followed

along. He said that, if Rhymes had asked him to let him out of the vehicle after they had Ibarra,

he would have done so. He also said that, if Rhymes had not been in on the kidnapping, he would

not have followed through with it at that time. However, he also agreed that, if Rhymes tried to

pull out after they began, he would have had to kill him.

The State also introduced Rhymes’ recorded custodial interview. Initially, Rhymes

acknowledged that Wohlford told them at the hospital that she wanted someone to beat up her

husband, but he denied any knowledge about the murder. He maintained that he had left the

hospital at 12:15 and that he had gone home and gone to bed. After being confronted with

information that all of the others involved implicated him, he denied that he knew about the plan

or that Sanford and Ponse were going to hurt Ibarra. Eventually, he admitted that Ponse shot Ibarra

and that Sanford got mad because he had wanted to do it. He said that Ponse was standing and

Ibarra was on the ground when he shot him.

Rhymes also said that Sanford attacked Ibarra at Ibarra’s house and that he took Wohlford

downstairs to keep her from getting hurt, but he maintained that he did so because he did not know

what was going on. He stated that Sanford had tied Ibarra up with some flimsy tape and that

Sanford had told Ibarra that his father owed him some money. Rhymes then told the officers about

the plan to plant drugs on Ibarra and the acquisition of the methamphetamine from his cousin. He

also initially denied any knowledge about Sanford stealing gloves from Walmart, but later

confirmed that they stole three pairs of gloves and identified the type of gloves. In addition, he

13
confirmed that Sanford, Ponse, and he all wore the gloves that night, but maintained that he had

only worn them to break them in as work gloves. He also said that they had put tape around

Ibarra’s hands and around his mouth.

Rhymes’ testimony from his aggravated kidnapping trial was also read to the jury. Rhymes

testified that he had helped Wohlford get methamphetamine to set up Ibarra and get him out of her

house, but that that plan was abandoned. He maintained that Sanford, Ponse, and Wohlford

devised the plan to kidnap Ibarra, but that he did not think they were serious. He admitted that he,

Sanford, and Ponse had consumed the methamphetamine before going to Ibarra’s house. Although

he knew Ponse had a gun, he claimed that he did not know that he brought it until they got to

Ibarra’s house.

Rhymes testified that, when they got to Ibarra’s house, Wohlford had left the door unlocked

and that he knew she would. He also said that he knew Ponse had a gun when they walked into

the house. He admitted that his job was to get Wohlford out of harm’s way when Sanford and

Ponse jumped Ibarra. Rhymes also testified that, after they took Ibarra downstairs, they drove him

to the wooded area where his body was later found. When they arrived, they removed Ibarra from

the car and walked him into the woods where he tripped and fell. As Ibarra started to lift his head,

Ponse shot him. Rhymes also admitted that he was part of both kidnapping Ibarra and of Ibarra

being taken out in the woods and shot.

The State’s evidence also showed that while the Titus County Sheriff’s Office was

investigating the kidnapping in the early morning hours of February 20, Wohlford found out that

they were using cell phone towers to locate Ibarra’s cell phone, which the perpetrators had taken

14
with them. Almost immediately, a text message was sent from Wohlford’s cell phone to Rhymes’

cell phone that read, “Kill [Ibarra’s] phone. Shut that s*** down.” A couple of hours later, when

Wohlford found out the investigating officers had found a location for Ibarra’s cell phone, a second

text message was sent from Wohlford’s cell phone to Rhymes’ cell phone stating, “Ditch phone.

Move.” Although Rhymes claimed that he no longer owned the cell phone and had given it to

Ponse, other evidence showed that he had used the cell phone to call and send text messages to

relatives and friends shortly before and after the kidnapping and murder.

In addition, testimony from Dr. Janis Townsend-Parchman, who performed the autopsy on

Ibarra, established that he was killed by a single shot to the back of his head. She also testified

that there were abrasions around the entry wound of the gunshot that indicated that the muzzle of

the gun was pressed against the scalp. She said that this type of wound is commonly called an

execution-style gunshot wound. Testimony from investigating officers showed that a bullet casing

found at the murder scene had been fired from the firearm found underneath Rhymes’ house.

C. Analysis

Rhymes argues that this evidence does not establish that anyone intentionally shot Ibarra.

Although he concedes that Ponse and Sanford planned to shoot Ibarra, he argues that the evidence

shows that Ibarra and Ponse tripped and that the gun was accidentally fired. However, Sanford

never testified that Ponse tripped, only Ibarra. He also testified that Ponse shot Ibarra as he was

trying to get to his knees. Further, in his recorded statement, Rhymes stated that Ponse was

standing and Ibarra was on the ground when Ponse shot him. Also, the evidence showed that the

firearm was pressed against Ibarra’s scalp when it was fired. Finally, “[a] firearm is a deadly

15
weapon per se,” and “[i]ntent to kill may be inferred from the use of a deadly weapon.” Williams

v. State, 502 S.W.3d 262, 270 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). Based on this

evidence, coupled with Sanford’s testimony that they planned to kill Ibarra, a reasonable jury could

infer that Ponse intentionally or knowingly caused the death of Ibarra.

Rhymes also argues that the evidence does not establish that Rhymes intentionally or

knowingly assisted in the murder. Rhymes argues that the evidence shows that he did not think

Sanford and Ponse were serious when they were planning the kidnapping and murder and that, by

the time he realized they were serious, he was afraid to back out. However, although Sanford

testified that he did not think Rhymes realized fully what they were going to do, he also stated that

Rhymes was aware of the plan from the beginning and never objected to it. In addition, Rhymes

accompanied Sanford in preparation for the execution of the plan, assisting him in removing the

car seats from Wohlford’s car and in shoplifting gloves from Walmart.

Also, Rhymes admitted to assisting in both kidnapping Ibarra and taking him to the woods

where he was shot. The evidence also showed that Wohlford sent her warnings regarding Ibarra’s

cell phone to Rhymes, indicating that he fully participated in all aspects of the planning and

execution of the kidnapping and murder. Further, a reasonable jury could choose to not believe

Rhymes’ claim that he did not know the plan was serious and that he was afraid to back out once

he realized it was, considering the multiple prevarications made by him in his custodial statement.

Accordingly, we find the evidence is sufficient to support a finding that Rhymes

intentionally assisted Ponse and Sanford in the murder of Ibarra. We overrule Rhymes’ first point

of error.

16
III. The Trial Court Did Not Err in Denying Rhymes’ Motion to Quash

A. Introduction

In his second point of error, Rhymes complains that the trial court erred in denying his

motion to quash because of prosecutorial and judicial vindictiveness. Rhymes argues that, since

he received a twenty-three-year sentence in Titus County for the aggravated kidnapping charge,

trying him for murder in Camp County is evidence of prosecutorial vindictiveness, i.e., retribution

by the prosecutor for the less-than-anticipated sentence he received in Titus County. In addition,

he argues that the trial court’s decision to run his seventy-five-year sentence in this case

consecutively to his Titus County sentence is evidence of judicial vindictiveness.

B. Rhymes Failed to Preserve His Judicial Vindictiveness Complaint

Initially, we note that Rhymes’ assertion of judicial vindictiveness has been raised for the

first time on appeal. In order to preserve an issue for appellate review, the record must show that

the appellant (1) made a timely complaint to the trial court by a request, objection, or motion

(2) that stated the complaint with sufficient specificity to make the trial court aware of the

complaint and (3) obtained a ruling, or a refusal to rule, by the trial court. See TEX. R. APP. P.

33.1(a). We have reviewed the record, including Rhymes’ motion to quash, the transcript of the

hearing on the same, the trial transcript, Rhymes’ motion for new trial, and the transcript of the

hearing on the same. No allegation of judicial vindictiveness was raised in the trial court. As we

have previously held, an issue of judicial vindictiveness is not preserved for appellate review when

the appellant does not meet the requirements of Rule 33.1. Rosborough v. State, No. 06-06-00237-

CR, 2007 WL 2033762, at *2 (Tex. App.—Texarkana July 17, 2007, no pet.) (mem. op., not

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designated for publication).9 Therefore, Rhymes has not preserved any issue related to judicial

vindictiveness for our review.10

C. Rhymes Failed to Establish Prosecutorial Vindictiveness

1. Standard of Review

Both Texas and federal courts recognize that “the decision whether to prosecute and what

charge to file generally rests entirely within [a prosecutor’s] discretion.” Neal v. State, 150 S.W.3d

169, 173 (Tex. Crim. App. 2004) (quoting State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex.

1992) (Gonzalez, J., concurring); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). Further,

“[c]ourts must presume that a criminal prosecution is undertaken in good faith and in

nondiscriminatory fashion to fulfill the State’s duty to bring violators to justice.” Id. (citing Gawlik

v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980)). In certain limited circumstances, however,

this presumption of good-faith prosecution may “give[] way to either a rebuttable presumption of

prosecutorial vindictiveness or proof of actual vindictiveness.” Id.

To be entitled to a rebuttable presumption of prosecutorial vindictiveness, the “defendant

must prove that he was convicted, he appealed and obtained a new trial, and that the State thereafter

9
Although unpublished cases have no precedential value, we may take guidance from them “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
10
Even if this issue had been preserved for our review, Rhymes argues that a presumption of judicial vindictiveness,
as recognized in North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds by Alabama v. Smith,
490 U.S. 794 (1989), should apply in this case. However, a presumption of judicial vindictiveness only applies when
the defendant has successfully appealed his conviction and the trial court imposes a more severe punishment after a
new trial without affirmatively stating its reasons for the increased sentence. Id. at 724–26; Rosborough, 2007 WL
2033762, at *2. Consequently, as in the prosecutorial vindictiveness presumption discussed below, to be entitled to
the presumption, the defendant must show that he has successfully appealed his original conviction and received a
more severe punishment after his new trial. In this case, there has been neither a successful appeal nor a new trial.
Therefore, the presumption would not apply, and Rhymes would not be entitled to relief.
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filed a greater charge or additional enhancements.” Id. at 174. The State can then overcome the

presumption by presenting “an explanation for the charging increase that is unrelated to the

defendant’s exercise of his legal right to appeal.” Id. (citing United States v. Krezdorn, 693 F.2d

1221, 1229 (5th Cir. 1982)). If the presumption does not apply, in order to obtain relief the

defendant must show actual vindictiveness. Id. (citing Texas v. McCullough, 475 U.S. 134, 138

(1986)). This requires the defendant to “prove, with objective evidence, that the prosecutor’s

charging decision was a ‘direct and unjustifiable penalty’ that resulted ‘solely from the defendant’s

exercise of a protected legal right.’” Id. (quoting U.S. v. Goodwin, 457 U.S. 368, 384 & n.19

(1982)). To show actual vindictiveness, “the defendant shoulders the burden of both production

and persuasion, unaided by any legal presumption.” Id. (citing United States v. Sarracino, 340

F.3d 1148, 1177–79 (10th Cir. 2003); United States v. Moulder, 141 F.3d 568, 572 (5th Cir. 1998)).

2. Analysis

In this case, there has been no previous appeal that resulted in a new trial. Rather, this is

the first appeal of Rhymes’ original conviction. Therefore, Rhymes is not entitled to a presumption

of prosecutorial vindictiveness. Id. Rhymes, then, had to show actual vindictiveness. At the

hearing on his motion to quash, Rhymes made an argument, but he offered no objective evidence

to show actual prosecutorial vindictiveness. Argument of counsel is not evidence. Cary v. State,

507 S.W.3d 750, 755 (Tex. Crim. App. 2016). In his brief, Rhymes points only to the facts that

(1) he was tried for aggravated kidnapping in Titus County and received a twenty-three-year

sentence, (2) he received a seventy-five year sentence in this case, which the trial court ordered

that he serve consecutively, and (3) both Titus and Camp County are served by the same district

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attorney and the same presiding judges. None of these facts, whether separately or taken together,

show actual prosecutorial vindictiveness.

D. Summary

Since Rhymes has not shown prosecutorial vindictiveness and has preserved no issue

regarding judicial vindictiveness, we find that the trial court did not err in denying Rhymes’ motion

to quash. We overrule his second point of error.

IV. Rhymes Has Not Shown Ineffective Assistance of Counsel

A. Introduction

In his third point of error, Rhymes complains that he received ineffective assistance of

counsel. Rhymes bases his complaint on the conduct of his trial counsel, who also represented

him in the appeal of his aggravated kidnapping conviction, in convincing him to dismiss his appeal

of that conviction, thereby allowing that conviction to become final. Rhymes argues that the

finality of the aggravated kidnapping conviction had two devastating effects: (1) it allowed the

State to introduce his prior testimony from that proceeding in this trial and (2) it allowed the trial

court to run his sentence consecutively to his prior sentence.

B. Standard of Review

As many cases have noted, the right to counsel does not mean the right to errorless counsel.

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim

of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in

Strickland v. Washington. 466 U.S. 668, 687–88 (1984); see also Ex parte Imoudu, 284 S.W.3d

866, 869 (Tex. Crim. App. 2009). The first prong requires a showing that counsel’s performance

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fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. This requirement

can be difficult to meet since there is “a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id. at 689.

When a claim of ineffective assistance of counsel is raised for the first time on direct

appeal, the record “is in almost all cases inadequate to show that counsel’s conduct fell below an

objectively reasonable standard of performance.” Andrews v. State, 159 S.W.3d 98, 102 (Tex.

Crim. App. 2005). Moreover, where the reviewing court “can conceive potential reasonable trial

strategies that counsel could have been pursuing,” the court “simply cannot conclude that counsel

has performed deficiently.” Id. at 103. When a defendant raises an ineffective assistance of

counsel claim for the first time on direct appeal, he must show that “under prevailing professional

norms,” Strickland, 466 U.S. at 688, no competent attorney would do what trial counsel did or no

competent attorney would fail to do what trial counsel failed to do. See Andrews, 159 S.W.3d at

102.

The second Strickland prong, sometimes referred to as “the prejudice prong,” requires a

showing that, but for counsel’s unprofessional error, there is a reasonable probability that the result

of the proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable

probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id.

Thus, in order to establish prejudice,

an applicant must show “that counsel’s errors were so serious as to deprive
defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.] at
687. . . . It is not sufficient for Applicant to show “that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693 . . . . Rather, [he]

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 must show that “there is a reasonable probability that, absent the errors, the fact
finder would have had a reasonable doubt respecting guilt.” Id. at 695.

Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).

The appellant has the burden 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). Allegations of

ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813). The Strickland test “of necessity requires

a case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 382 (2000)

(quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)). A

failure to make a showing under either prong defeats a claim for ineffective assistance. See

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).

C. Analysis

Rhymes has failed to show that his trial counsel erred in advising him to dismiss his appeal

of the aggravated kidnapping conviction, or that such advice fell below a reasonable professional

standard. Rhymes argues first that by allowing the aggravated kidnapping conviction to become

final, his testimony in that proceeding became admissible in the trial of this case. Rhymes has

cited no authority, and we have found none, that requires the prior proceeding to be final before

testimony given in that proceeding is admissible in a subsequent proceeding.

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 Further, under certain circumstances, Rule 804(b)(1)(B) allows the admission of a witness’

testimony in a prior proceeding when that witness is unavailable as a witness11 in the trial. In a

criminal prosecution, former testimony is admissible if (1) the declarant is unavailable to testify,

(2) the current proceeding includes the same charges, parties, and issues as the former proceeding,

and (3) the party against whom the testimony is offered had an opportunity and similar motive to

develop the former testimony at the prior proceeding.12 Davis v. State, 961 S.W.2d 156, 158 (Tex.

Crim. App. 1998) (Baird, J., concurring) (citing Bryan, 837 S.W.2d 637). Notably, finality of the

prior proceeding is not a prerequisite to the admission of the defendant’s former testimony.

Consequently, the dismissal of Rhymes’ appeal of the aggravated kidnapping conviction did not

affect the admissibility of his former testimony.

Rhymes also argues that the finality of the aggravated kidnapping conviction allowed the

trial court to run his sentence consecutively to the sentence received in that case. When a defendant

has been convicted in two or more cases, the Texas Code of Criminal Procedure gives the trial

court discretion in the second and subsequent cases to run the sentence(s) consecutively to the

sentence received in the preceding case. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West

Supp. 2017). Rhymes has cited no authority, and we have found none, that requires the preceding

case to be final before the trial court is authorized to run the sentence in a subsequent case

11
A defendant that invokes his Fifth Amendment privilege not to testify becomes unavailable as a witness. See Bryan
v. State, 837 S.W.2d 637, 644 (Tex. Crim. App. 1992), abrogated on other grounds by Trevino v. State, 991 S.W.2d
849 (Tex. Crim. App. 1999).
12
There is nothing in the record that shows these prerequisites were not satisfied.
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consecutively to the sentence received in the preceding case. Thus, the dismissal of Rhymes’

appeal did not affect the trial court’s authority to run his sentence consecutively.

Since the dismissal of his appeal had no effect on the admissibility of Rhymes’ former

testimony, or on the trial court’s authority to run his sentence consecutively, Rhymes has failed to

demonstrate any error by his trial counsel that fell below a reasonable professional standard.

Therefore, we overrule his third point of error.

V. Conclusion

For all of the foregoing reasons, we affirm the judgment of the trial court.

Ralph K. Burgess
Justice

Date Submitted: November 20, 2017
Date Decided: December 12, 2017

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