Affirmed and Memorandum Opinion filed July 15, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00719-CR
SHAWN DEROYCE SARGEON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1590681
MEMORANDUM OPINION
In a single issue, Appellant Shawn Deroyce Sargeon argues he received
ineffective assistance of counsel in the underlying proceeding. For the reasons
below, we affirm.
BACKGROUND
Three masked men robbed a Valero gas station on the night of May 10,
2018. Appellant was arrested in connection with the incident and charged with
aggravated robbery with a deadly weapon. See Tex. Penal Code Ann.
§ 29.03(a)(2). Appellant proceeded to a jury trial in September 2019.
Evidence at Trial
In its case-in-chief, the State presented testimony from fifteen witnesses.
Two witnesses were present in the Valero gas station when the robbery occurred:
the cashier, Otis Boggess, and a customer, Korey Bednarz. According to Boggess
and Bednarz, three masked men entered the Valero with guns. Boggess described
the suspects as “young guys” that “were black”; he also recalled that two of the
men were wearing “security jackets.” According to Boggess, he gave the men the
money from two cash registers; one of the stacks of money given to the suspects
contained a tracking device. Boggess testified that the suspects also took Newport
and Swisher Sweet cigarettes as well as Bednarz’s purse and cell phone.
Admitted into evidence during trial were surveillance video recordings taken
at the Valero the night of the robbery. The video recordings show a blue SUV
pulling into the Valero’s parking lot and three masked men wearing all-black
clothing entering the store. Next, the masked men are seen taking money from the
cash registers and going through the cigarette and cigar rack. Finally, the video
shows the masked men leaving the store and the blue SUV leaving the Valero’s
parking lot.
Testifying at trial, Houston Police Officer Richards said he was on patrol the
night of May 10, 2018, when he received a call reporting “[a] robbery in progress
at a gas station.” After the initial call, Officer Richards said he was updated that
“there was a tracking device that had been taken” along with the items stolen from
the gas station.
According to Officer Richards, he began to follow the tracking device’s
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reported location. When he arrived at the “same location that the tracking device
was,” Officer Richards activated his emergency lights and sirens. Officer Richards
testified that “there was one car that immediately reacted to [his] emergency
equipment” — a red sedan. Officer Richards said the red sedan “blew through a
stop sign” and Officer Richards proceeded to follow it.
Officer Richards followed the red sedan through several neighborhoods and
onto Interstate 10. According to Officer Richards, he saw the red sedan crash into
the interstate’s center barrier and come to a stop. Officer Richards testified that he
saw three black males exit the vehicle and run “into a wooded area.” Officer
Richards remained with the red sedan until it was towed off the freeway for further
investigation.
Officer Ortiz assisted with the search for the three males who were seen
exiting the red sedan. Watching his body camera footage from the evening in
question, Officer Ortiz said he and other police offers maintained a perimeter
around the wooded area where the three men had fled. According to Officer Ortiz,
he, another officer, and a police dog began searching for the men in a “bamboo
thicket”. While searching through the bamboo, Officer Ortiz apprehended
Appellant. According to Officer Ortiz, Appellant was wearing red shorts and a
light-colored tank top. While searching Appellant’s pockets, Officer Ortiz found a
pack of Swisher Sweet cigarettes and Appellant’s wallet.
Officer Sierra assisted in maintaining a perimeter of the wooded area where
Appellant was apprehended. Officer Sierra testified that a second black male,
Kalluppe Allen, also was found in the wooded area. Officer Sierra said the officers
did not locate the third person who was seen exiting the red sedan after it crashed
on the interstate.
According to Officer Sierra, he was speaking with Appellant when
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Appellant “requested medical attention because he had just been involved in a
vehicular crash.” Officer Sierra also testified that Appellant told him “to go ahead
and charge him with evading. That he’ll just do his time.”
After Appellant and Allen were transferred into custody, Officer Sierra
inventoried the red sedan. Officer Sierra testified that he recovered from the
vehicle two firearms as well as:
a Med Security jacket. I also found a dark-colored hooded coat,
which is kind of heavy, you know, when you carry it. I found a do-
rag, black in color. I also found a cardboard box. I remember
counting specifically 36 boxes of Newport cigarettes, white in color. I
remember counting on or about 15 Swisher Sweets, a stack of money
and then separate monetary bills.
Officer Sierra also recovered the tracking device hidden in one of the stacks of
bills. Finally, Officer Sierra testified that he found Bednarz’s purse.
Three witnesses from the Houston Forensic Science Center also testified at
trial. The forensic science witnesses testified regarding the collection and
processing of fingerprints recovered from the red sedan. According to forensic
science witness Rebecca Green, she analyzed four fingerprints from the red sedan
for certain identifying characteristics. Green said she proceeded to run the
fingerprints through an “Automated Fingerprint Identification System” to
determine “who those prints belong to.” Green testified that she made a
“preliminary association” between the fingerprints recovered from the red sedan
and those of Appellant.
Finally, the State called two witnesses, Officer Zurita and Officer Cotton, to
testify regarding two previous robberies that took place in Houston. According to
Officer Zurita, three black males robbed a Papa John’s pizza restaurant in central
Houston on August 26, 2011. Officer Zurita testified that the suspects used a rifle
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and a handgun during the robbery and that two of the suspects had their noses and
mouths covered with bandanas. Officer Zurita said the suspects took money from
the store and got away in a gray car with a red driver’s door.
Officer Cotton testified about a separate robbery that occurred in Bellaire
that same night. According to Officer Cotton, three black males entered a Shell
gas station and robbed the clerks at gunpoint. Officer Cotton said the suspects
used a rifle and a handgun during the robbery and left the scene in a light-colored
sedan with a red door.
Officer Cotton testified that a vehicle matching that description was stopped
two days later. According to Officer Cotton, Appellant was one of the individuals
in the car when it was stopped. While searching the vehicle, Officer Cotton
recovered a rifle, a revolver, and “some cigars, cigarillos that would have — that
were some of the things that were stolen in the Bellaire robbery.”
The State offered into evidence a declaration of records from the Texas
Department of Criminal Justice. The records show Appellant was adjudicated
guilty for the 2011 aggravated robberies at the Papa John’s and Shell gas station.
The trial court gave the jury a limiting instruction with respect to these extraneous
offenses.
Appellant was the last witness to testify at trial. According to Appellant, the
night of the robbery he called Allen to ask for a ride to the store to buy baby food
and diapers. Allen picked up Appellant in a red sedan and, according to Appellant,
Allen asked Appellant “to drop him off and then come pick him back up at a later
time.” Appellant dropped off Allen and drove the red sedan to complete his
errands. Appellant returned to pick up Allen, who was dropped off in a blue SUV.
According to Appellant, Allen “[e]mptied some contents inside of the [red sedan’s]
trunk” and Allen and another man got in the car.
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Appellant was driving when he saw a police officer’s car behind them with
its lights on. Appellant said Allen told him to “go” and explained that he had “a
firearm in the trunk.” Appellant attempted to “get away” from the police officer
but “eventually lost control of the vehicle”. Appellant testified that he “[r]an
across the oncoming traffic on the other side of the freeway into a bayou” and he
and Allen hid in “some woods” until they were found by police officers. Appellant
did not know where the other person in the red sedan had fled. Appellant testified
that he did not commit the robbery that night at the Valero.
Final Judgment
The jury found Appellant guilty of aggravated robbery with a deadly weapon
and assessed punishment at 30 years’ confinement. Appellant appealed.
ANALYSIS
On appeal, Appellant argues he received ineffective assistance of counsel
because his defense counsel (1) gave an opening statement that opened the door to
Appellant’s prior aggravated robbery convictions, and (2) “abdicated his role as a
defense attorney when he told the venire panel that his role as a defense attorney
was ‘not to make sure [Appellant] goes home at the end of this case’ but instead ‘to
defend the Constitution.’” We consider these issues below.
I. Standard of Review and Governing Law
To prevail on a claim for ineffective assistance of counsel, an appellant must
show that (1) trial counsel’s performance fell below the objective standard of
reasonableness; and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011). Failure to satisfy either prong of the Strickland
test defeats an ineffective assistance claim. Strickland, 466 U.S. at 697; Nichols v.
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State, 494 S.W.3d 854, 857 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
To satisfy the first prong, an appellant must prove by a preponderance of the
evidence that trial counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms. Lopez, 343 S.W.3d at
142. We consider the totality of the circumstances to determine whether counsel
was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999);
Nichols, 494 S.W.3d at 857. Trial counsel’s performance is subject to a “highly
deferential” review and there “is a strong presumption that counsel’s conduct falls
within a wide range of reasonable professional assistance.” Andrews v. State, 159
S.W.3d 98, 101 (Tex. Crim. App. 2005). Thus, any allegation of ineffective
assistance must be firmly founded in the record. Menefield v. State, 363 S.W.3d
591, 592 (Tex. Crim. App. 2012).
Direct appeal usually is an inadequate vehicle for raising an ineffective
assistance claim because the record generally is undeveloped. Id. at 592-93. Trial
counsel ordinarily should be afforded an opportunity to explain his actions and, if
counsel is not given that opportunity, we should not conclude that his performance
was deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava v. State, 415 S.W.3d 289, 308 (Tex.
Crim. App. 2013).
To satisfy the second Strickland prong, an appellant must show a reasonable
probability that, but for trial counsel’s deficient actions, the result of the
proceeding would have been different. Lopez, 343 S.W.3d at 142. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id.
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II. Application
A. Defense Counsel’s Opening Statement
In his first ineffective-assistance argument, Appellant asserts his defense
counsel’s opening statement improperly opened the door to evidence of
Appellant’s prior aggravated robbery convictions. Appellant contends that “[t]here
can be no strategy for allowing the jury to hear that a defendant has previously
been convicted of the same offense for which [he] is standing trial.”
In his opening statement, defense counsel told the jury that, the night of the
robbery, Appellant called Allen for a ride. According to defense counsel, Allen let
Appellant borrow his car for approximately one hour. When Appellant returned to
pick up Allen, Allen put a box in the car and instructed Appellant to continue
driving. Defense counsel told the jury that, when a police officer started following
the car, Allen told Appellant to flee from the officer and to get on the interstate.
After Appellant crashed the car, Appellant and Allen hid in the woods until they
were found by the police officers.
Describing this chain of events, defense counsel told the jury:
When [the officers] find [Appellant], he says to them, you got me for
evading. And that is true. [Appellant] did evade. What he did not do
that night is rob a convenience store. And this is the reason why you
will not see anybody that can identify him. . . .
What [Appellant] did was he had [Allen’s] car. He followed [Allen’s]
instructions to leave — to drive. He evaded the police, but he did not
rob anybody that night.
In its case-in-chief, the State cited defense counsel’s opening statement and argued
to the trial court that the statement opened the door to the admission of evidence
showing Appellant’s prior aggravated robbery convictions:
If the defense’s strategy or theory is going to be this is a mistake, a
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fact that the [Appellant] didn’t have anything to do with this, that he
had no clue there was an aggravated robbery or anything like that,
we’d be asking the Court to be able to put on evidence of those
extraneous [offenses] in our case in chief to show that this is not a
mistake. That the [Appellant] knew what was going on and he was a
part of the plan.
The trial court granted the State’s request and permitted the State to introduce
evidence of the prior aggravated robberies for the limited purpose of rebutting
defense counsel’s theory.
Defense counsel may open the door to evidence of an extraneous offense via
an opening statement. See Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App.
2016); Mason v. State, 416 S.W.3d 720, 740 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d). Likewise, when an appellant vigorously challenges identity
through cross-examination, evidence of an extraneous offense is admissible to
rebut a claim of mistaken identity. Mason, 416 S.W.3d at 740.
We recently considered an issue similar to the one presented here in Osby v.
State, No. 14-17-00641-CR, 2019 WL 2305937, at *5 (Tex. App.—Houston [14th
Dist.] May 30, 2019, no pet.) (mem. op., not designated for publication). There,
the trial court held that the appellant opened the door to evidence of an extraneous
offense “by challenging [the appellant’s] identity as the perpetrator of the charged
offense in his counsel’s opening statement and in cross-examination of several
witnesses.” Id. at *2. On appeal, the appellant argued that his trial counsel, by
opening the door to the extraneous offense, rendered ineffective assistance. Id. at
*5.
Rejecting the appellant’s argument, we noted that his trial counsel stated at
the hearing on the admissibility of the extraneous offense “that identity was ‘the
entire case’ and that [trial counsel] did not know what he could ask of any witness
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that would not raise the issue of identity.” Id. We concluded that the appellant’s
trial counsel “was not ineffective by presenting evidence and questioning witnesses
on identity when identity was the only real defense, even though it may have
opened the door to an extraneous offense.” Id.
Similarly, courts repeatedly have held that opening statements or witness
questioning that opens the door to a defendant’s extraneous offense is not
ineffective assistance where counsel’s actions were consistent with a reasonable
trial strategy. See, e.g., Howard v. State, 239 S.W.3d 359, 368 (Tex. App.—San
Antonio 2007, pet. ref’d) (mem. op.) (the appellant argued he received ineffective
assistance when his counsel opened the door to extraneous bad acts; overruling this
issue, the court held that “[c]ounsel’s remarks in his opening statement were
consistent with his trial strategy”); Josey v. State, 97 S.W.3d 687, 696 (Tex.
App.—Texarkana 2003, no pet.) (counsel’s questioning that opened the door to the
forensic interviewer’s responses regarding other alleged sexual contact between the
victim and the defendant was not ineffective assistance but instead “represent[ed]
an attempt to undermine the credibility” of either the interviewer or the victim);
and Bass v. State, 713 S.W.2d 782, 785 (Tex. App.—Houston [14th Dist.] 1986, no
pet.) (the court concluded that trial counsel did not render ineffective assistance by
putting the appellant on the stand and subjecting her to cross-examination
regarding her prior offenses; establishing the appellant’s lack of intent, which was
her only real defense, was a plausible trial tactic).
Here, a review of the record shows that challenging identity was one of the
few strategies available to Appellant’s defense counsel. The State presented
overwhelming evidence connecting Appellant to the car that contained the property
stolen from the Valero. Appellant matched the description of the men seen fleeing
the red sedan after it crashed on the interstate and, shortly thereafter, Appellant and
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Allen were found hiding in a bamboo thicket near the scene of the accident.
According to Officer Sierra, he was speaking with Appellant after Appellant was
found in the bamboo thicket and Appellant “requested medical attention because
he had just been involved in a vehicular crash.” Officer Sierra also testified that
Appellant told him “to go ahead and charge him with evading. That he’ll just do
his time.” Moreover, according to the testimony from the forensic science
witnesses, a “preliminary association” was made between the fingerprints
recovered from the red sedan and those of Appellant.
Against this backdrop, Appellant’s defense counsel could not reasonably
contend that Appellant was not one of the three men that fled the red sedan after it
crashed on the interstate. But defense counsel could plausibly argue that Appellant
was not one of the three suspects that robbed the Valero and that his connection to
the vehicle containing the stolen property was an unfortunate coincidence.
Defense counsel’s examination of witnesses and closing argument hewed to this
trial strategy and consistently challenged whether Appellant could be identified as
one of the suspects that perpetuated the robbery.
Because there was no evidentiary motion for new trial, defense counsel had
no opportunity to explain his actions that preceded the admission of evidence
regarding Appellant’s prior convictions. Accordingly, we will not conclude those
actions were deficient unless they can be deemed “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308. Because the
actions Appellant complains of could have been part of a plausible trial strategy,
they do not rise to the level necessary to show ineffective assistance under the first
Strickland prong. See Strickland, 466 U.S. at 697; Nichols, 494 S.W. 3d at 857;
see also Osby, 2019 WL 2305937, at *5; Bass, 713 S.W.2d at 785.
We overrule Appellant’s first ineffective-assistance argument.
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B. Defense Counsel’s Statements to the Venire Panel
In his second ineffective-assistance argument, Appellant contends his
defense counsel “abdicated his role as a defense attorney” by making certain
statements during voir dire that demonstrated a conflict of interest. Specifically,
Appellant points to the following statements:
Let’s discuss that. Let’s discuss my role in this trial.
My role is not to make sure [Appellant] goes home at the end of this
case. My role is to defend the Constitution. The reason why I say
that is because anybody could end up in this seat.
As of September 1st, 802 new laws came into effect in the State of
Texas. Meaning that there are lots of ways for you to end up in this
seat. And it could be you, a loved one, family member, friend. And if
they were in the seat — we would all agree — you’d want somebody
to defend you to make sure that your rights were — that you had your
rights [] maintained, correct?
So, that’s my job. It’s to make sure that [Appellant’s] rights are
respected. I’m not here to — as people say — criminal defense
attorneys who put criminals on the street. I don’t do that. I make sure
that our Constitution is available to every one of us.
Appellant argues that he was “entitled to an attorney who represented him — not
the Constitution.” (emphasis in original).
Appellant contends that this argument is properly evaluated pursuant to the
standard set forth in Cuyler v. Sullivan, 446 U.S. 335 (1980), which applies to
claims alleging a conflict of interest. Under this standard, an appellant asserting
ineffective assistance derived from a conflict of interest need only show that trial
counsel “actively represented conflicting interests” and that counsel’s performance
at trial was “adversely affected” by the conflict of interest. Id. at 349-50; see also
Acosta v. State, 233 S.W.3d 349, 352-53 (Tex. Crim. App. 2007).
Appellant does not cite any case law or other authority to support his
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contention that defense counsel “represented conflicting interests” by advocating
for both Appellant and the Constitution during voir dire. Rather, these statements
reasonably reflect the duties defense counsel undertook in his role as Appellant’s
legal representative.
“An attorney who represents a criminal defendant is ‘bound by professional
duty to present all available evidence and arguments in support of [the defendant’s]
positions and to contest with vigor all adverse evidence and views.’” Thomas v.
State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977) (quoting Gagnon v. Scarpelli,
411 U.S. 778, 787 (1973)). Effectively executing this role requires that a defense
attorney protect a criminal defendant’s constitutional rights. See Bailey v. State,
469 S.W.3d 762, 773 (Tex. App.—Houston [1st Dist.] 2015), aff’d, 507 S.W.3d
740 (Tex. Crim. App. 2016) (“The constitutional right to counsel in a criminal
prosecution exists to protect the fundamental rights to a fair trial.”); see also
Cannon v. State, 252 S.W.3d 342, 352 (Tex. Crim. App. 2008) (“every defense
counsel owes to his client his zealousness, competence, and diligence”).
Accordingly, the statements Appellant challenges do not evidence a conflict
of interests but instead summarize defense counsel’s professional duty in the
underlying proceeding. See Cannon, 252 S.W.3d at 352; Thomas, 550 S.W.2d at
68; and Bailey, 469 S.W.3d at 773. Therefore, these statements do not show
Appellant received ineffective assistance of counsel in the underlying proceeding.
We overrule Appellant’s second ineffective-assistance argument.
CONCLUSION
We affirm the trial court’s judgment.
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/s/ Meagan Hassan
Justice
Panel consists of Justices Spain, Hassan, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
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