Lee v. State

Full title: CLARENCE JAMES LEE, JR., Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 27, 2003

No. 05-02-00508-CR (Tex. App. May. 27, 2003)

Opinion

No. 05-02-00508-CR

Opinion issued May 27, 2003 Do Not Publish

On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-59341-MI AFFIRMED

Before Justices MOSELEY, O'NEILL, and LAGARDE¹.

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice Lagarde.

Clarence James Lee, Jr. appeals his conviction for felony theft of property valued at less than $1500. See Tex. Pen. Code Ann. § 31.03(e)(4)(D) (Vernon 2003). A jury found appellant guilty, found the enhancement paragraphs true and assessed punishment at six years' confinement. In three issues, appellant complains (1) the evidence is legally insufficient to support the conviction; (2) the evidence is factually insufficient to support the conviction; and (3) appellant was denied the right to effective assistance of counsel. We affirm the judgment of the trial court.

Factual Background

On November 23, 2001, appellant entered a Blockbuster video rental store and began browsing through the digital video discs ("DVDs") on display. John Martinez, the assistant manager of the store, noticed appellant several times, once with four or five DVDs in his hand, and once with only one DVD. Appellant later approached the front of the store holding a DVD in his hand and passed through the sensormatic alarm system, which immediately went off. Martinez took the DVD out of appellant's hand and requested he pass through the sensormatic alarm system a second time. Appellant refused to do so and left the store. Martinez immediately called the police to report a theft in progress. He described the suspect as a male wearing a baseball cap, gray jacket, and dark pants. He then made an investigation of the DVD section of the store and discovered two copies of the "Lara Croft, Tomb Raider" DVD and one copy of the "Keeping It Real" DVD were missing from the store. The store's computerized inventory reflected these DVDs had not been rented and should have been in the store's inventory. Dallas police officer Julie Martin testified she and her partner were on patrol in the vicinity of the Blockbuster store at the time of the theft. While driving to the store in response to the call, she noticed a man fitting the description of the suspect approximately one hundred yards from the Blockbuster store. The man, later identified as appellant, was carrying a white plastic sack containing four DVDs: two copies of "Lara Croft, Tomb Raider" and one copy each of "Keeping It Real" and "Dracula 2000". In response to a question regarding the DVDs, appellant told the officers he purchased the DVDs from Blockbuster but did not get a receipt. The officers placed appellant under arrest and returned to the Blockbuster store. Martinez testified that when the officers returned appellant to the store, Martinez positively identified appellant as the person who refused to pass back through the sensormatic alarm system. He also identified the four DVD movies as belonging to Blockbuster. Martinez further testified the movies were in the original Blockbuster containers and still contained the locking mechanisms normally removed upon rental by paying customers. Appellant testified at trial that he went to Blockbuster around 12:20 to 12:30 p.m. on November 23, 2001 to compare prices on DVD movies. When the man working at the Blockbuster took the DVD out of his hand and demanded that he pass back through the sensormatic alarm system, appellant left the store. He testified he went across the street and purchased four DVD movies from a stocky black man selling DVD movies from the trunk of a brown Oldsmobile. These movies were placed in a white plastic bag. Appellant denied he took any DVD movies from Blockbuster or that he told the police that he purchased the DVD movies from Blockbuster without obtaining a receipt. He stated he did not tell the police about the man selling the DVDs out of his trunk because he did not want to get the man into trouble.

Legal and Factual Sufficiency

In points of error one and two, appellant complains the evidence is legally and factually insufficient to support the conviction because the State failed to prove the appellant unlawfully appropriated the DVDs as alleged in the indictment. Appellant bases this argument on the fact that no one actually saw him take the DVDs from the Blockbuster store. The State responds that the evidence is sufficient because appellant was found in possession of the stolen DVDs minutes after the theft, within walking distance of the Blockbuster and appellant lied about how he obtained the DVDs. We agree with the State. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The jury is the exclusive judge of the facts proved and of the weight to be given to the testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). Reconciliation of conflicts in the evidence is within the exclusive province of the trier of fact. Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The trier of fact is free to accept or reject all or any part of the testimony of any witness. See Nolasco v. State, 970 S.W.2d 194, 196 (Tex.App.-Dallas 1998, no pet.). This Court may not substitute its determination for that of the jury. Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1999, no pet.). The State was required to prove beyond a reasonable doubt that appellant appropriated property without the owner's effective consent with the intent to deprive the owner of the property and that he has twice been previously convicted of any grade of theft. See Tex. Pen. Code Ann. §§ 31.03(a), 31.03(e)(4)(D) (Vernon 2003). "Appropriate" means the acquisition of or the exercise of control over property other than real property. Tex. Pen. Code Ann. § 31.01(4)(B) (Vernon Supp. 2003). The evidence established appellant was arrested in possession of four DVDs belonging to Blockbuster and that he had been convicted of theft on two previous occasions. After viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found that appellant intentionally and knowingly appropriated the four DVDs without the consent of Martinez, the assistant manager of the Blockbuster and that he had two prior convictions for theft. Thus, the evidence is legally sufficient to sustain the conviction. See Jackson, 443 U.S. at 318-19. Appellant further argues the evidence is factually insufficient to support his conviction because no one testified they saw him take the DVDs from the Blockbuster store. In support of this argument, appellant points to the fact that Martinez testified he did not see appellant leave the store with any DVDs and the State did not offer any surveillance tapes to show appellant committed the theft. Further, Martinez identified the DVDs as belonging to Blockbuster without establishing how he was able to make such identification. Although appellant was found to be in possession of four DVDs that were in Blockbuster boxes, appellant argues that the fact that similar DVDs were missing from the Blockbuster he exited minutes earlier did not prove he was in possession of DVDs that had, in fact, been taken from the store. However, appellant was apprehended approximately one hundred yards from the Blockbuster store, within ten minutes of the theft, and he was in possession of the exact titles discovered to be missing from the Blockbuster store after his departure. After reviewing all the evidence in a neutral light, we conclude the evidence of guilt is not so obviously weak as to undermine confidence in the jury's determination. See Johnson, 23 S.W.3d at 11. Consequently, the evidence is factually sufficient to support appellant's felony theft conviction. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's first two points of error.

Effective Assistance of Counsel

In point of error number three, appellant asserts he was denied the right to effective assistance of counsel. The right to effective assistance of counsel is guaranteed under both the federal and state constitutions. Appellant asserts his trial counsel was ineffective because of his (1) failure to object to the amendment of the indictment; (2) failure to stipulate to the prior theft convictions; (3) failure to seek out and obtain key defense testimony; (4) failure to object to oral statements made by the appellant while he was being subjected to custodial interrogation See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The standard for testing ineffective assistance of counsel claims was announced in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). The Strickland- Hernandez standard establishes a two-part test to be used in considering ineffectiveness claims. This standard applies at both the guilt and punishment phases of trial. See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). First, an appellant must show that trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. The appellate court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. Judicial scrutiny of counsel's performance must be highly deferential. A fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689. Second, an appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must affirmatively prove prejudice. Strickland, 466 U.S. at 693; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), disavowed in part on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App. 1998). Appellant bears the burden of showing ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). The alleged deficiencies of counsel must be supported by the record. Johnson v. State, 691 S.W.2d 619, 626-27 (Tex.Crim.App. 1984). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; McFarland v. State, 928 S.W.2d at 500. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We do not inquire into trial strategy unless no plausible basis exists for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). The fact that other counsel might have tried the case differently will not support a finding of ineffectiveness. Small v. State, 692 S.W.2d 536, 539 (Tex.App.-Dallas 1985, pet. ref'd). Thus, conduct must be judged on the facts of the particular case, and allegations must be firmly founded in the record. Id. When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A silent record does not require an appellate court to speculate on the reason for trial counsel's decisions. Id. Our speculation on the reasons for trial counsel's actions is "not material." Id. Without trial counsel's explanation of the reasons for the action or inaction alleged as error, an appellant will have difficulty overcoming the strong presumption that counsel's decisions fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 814; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). For example, "in the absence of evidence of counsel's reasons for the challenged conduct, an appellate court 'commonly will assume a strategic motivation if any can possibly be imagined,' 3 W. LaFave, et al., Criminal Procedure § 11.10(c) (2d. ed 1999), and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001), cert. denied, 123 S.Ct. 1351 (2003). This is a direct appeal from the trial court's judgment. Appellant did not develop evidence of his counsel's trial strategy through a hearing on a motion for new trial. We will discuss each of the alleged instances of ineffective assistance in turn. Appellant first asserts his trial counsel was ineffective in failing to object to the amendment of the indictment. However, in order for counsel to have been ineffective in failing to object, an objection must have been appropriate. Appellant relies on the code of criminal procedure, which states:

An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

Tex. Code Crim. Proc. Ann. art. 28.10(c) (Vernon 1989). To determine whether the indictment was properly amended, we follow the two-step analysis performed in Flowers v. State, 815 S.W.2d 724 (Tex.Crim.App. 1991). First, we determine whether the amendment charged appellant with a different offense. See id. at 728-29. Then we review the record to determine whether the amendment prejudiced any of appellant's "substantial rights." See id. at 729. An affirmative answer to either inquiry would mean the amendment was impermissible. The indictment originally charged appellant with the theft of "disc players." The amendment struck the word "players" and inserted an "s" at the end of the word "disc", thus changing the indictment to charge appellant with theft of four digital video discs. "[A] different offense means a different statutory offense." Id. at 728. Under both the original and the amended indictments, appellant was charged with the identical statutory offense, i.e., theft of property valued at less than $1500. We conclude the amended indictment did not charge appellant with a different offense. Our second inquiry is whether the amendment of his indictment prejudiced appellant's substantial rights. Appellant argues his substantial rights were prejudiced because he was not prepared to defend himself against the charge of theft of video discs. Appellant also claims his waiver of the additional ten days to prepare for trial after the amendment was involuntary because he was incarcerated. These arguments are without merit. The record clearly shows appellant knew this amendment dealt with the same occurrence of theft as that alleged prior to the amendment. The amendment corrected the indictment to reflect the property actually taken from the Blockbuster store during the theft. Appellant was fully aware at all times of the facts surrounding the incident involved and no prejudice to any substantial rights is shown. The amendment was permissible. See Flowers, 815 S.W.2d at 729. Appellant's argument that his waiver of the additional ten days to prepare for trial after the amendment was involuntary because of his incarceration is also without merit. Article 28.10(a) provides

On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

Tex. Code Crim. Proc. Ann. art. 28.10(a). Appellant was given ample opportunity to exercise his rights under this section. The indictment was amended on March 11, 2002. Appellant freely and voluntarily waived the additional ten days at that time. Trial began the following day, March 12, 2002. Appellant again freely and voluntarily waived the additional ten days to prepare for trial. The record reflects appellant's actions in not requesting additional time to respond to the amendment to the indictment were voluntary notwithstanding his incarceration. Because the proposed amendment to the indictment was not objectionable and did not prejudice the substantial rights of appellant, appellant has failed to demonstrate that trial counsel's failure to object fell outside the wide range of professionally competent assistance. See Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. We conclude that trial counsel's failure to object to the amendment to the indictment was not ineffective assistance. Appellant also asserts his trial counsel was ineffective in failing to stipulate to the prior theft convictions. Two prior convictions of any grade of theft are jurisdictional elements of the offense charged by the State. Tex. Pen. Code Ann. § 31.03(e)(4)(D) (Vernon 2003). See Gant v. State, 606 S.W.2d 867, 871 (Tex.Crim.App. 1980); Gollihar v. State, 56 S.W.3d 606, 608 (Tex.App.-Texarkana 2001, no pet.). Additionally, appellant vigorously denied at trial that he was guilty of the two prior thefts. We will not inquire into trial strategy, nor will we speculate on the reasons for trial counsel's decisions. Jackson, 877 S.W.2d at 771. Absent an explanation on the record of trial counsel's strategy in not stipulating to evidence establishing these essential elements of the offense charged, and in light of appellant's denials at trial that he was guilty of the two prior thefts, we conclude appellant has failed to overcome the strong presumption that trial counsel's decisions fell within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Appellant next argues his trial counsel was ineffective for failing to seek out and secure the testimony of the individual who allegedly sold appellant the four DVDs from the trunk of his Oldsmobile. However, the record is silent as to any actions trial counsel may or may not have taken in an effort to procure and present such defensive testimony. In the absence of an explanation by trial counsel for his failure to present the defensive testimony, appellant has failed to overcome the strong presumption that counsel's decisions fell within the wide range of reasonable professional assistance. Id. Appellant also complains his trial counsel was ineffective in failing to object to appellant's custodial statements. After hearing a description of the suspect who committed a theft at the Blockbuster store, officer Martin stopped appellant approximately one hundred yards from the Blockbuster store. In response to a question regarding the DVDs carried by appellant in a white plastic bag, appellant told the officers he purchased the DVDs from Blockbuster but did not get a receipt. Appellant asserts his counsel was ineffective in not objecting to these statements as custodial statements. "Custodial interrogation" is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966). A person is in custody if, "under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996); see also Brown v. State, 960 S.W.2d 265, 270-71 (Tex.App.-Corpus Christi 1997, no pet.). The "reasonable person" standard presupposes an innocent person, and the law enforcement official's subjective intent to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect. Dowthitt, 931 S.W.2d at 254. ( citing Stansbury v. California, 511 U.S. 318 (1994) (per curiam)); Sliva v. State, 936 S.W.2d 721, 725 (Tex.App.-El Paso 1996, no pet.). Thus, we determine custody entirely on objective circumstances. Dowthitt, 931 S.W.2d at 254; see also Sliva, 936 S.W.2d at 725. Investigative detentions are justified when, based on the totality of the circumstances, an officer has articuable facts which lead him to conclude that the person is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997); Joseph v. State, 865 S.W.2d 100, 102 (Tex.App.-Corpus Christi 1993, pet. ref'd) (finding that seeing someone who matched a police dispatch description was sufficient to warrant an investigative detention of that person). Here, appellant matched the description of the person involved in the Blockbuster theft. This alone warranted the temporary detention of appellant. Moreover, during an investigative detention, custody is not established simply because the suspect is not able to leave until the investigation is completed. See Parker v. State, 710 S.W.2d 146, 147 (Tex.App.-Houston [14th Dist.] 1986, no pet.). The initial custody determination is made based on the objective circumstances of the interrogation. Dowthitt, 931 S.W.2d at 255. Custody is established only when the suspect's freedom of movement is restricted to the degree associated with an arrest or when the officer's knowledge of probable cause is manifested to the suspect and that manifestation, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. Id.; see also Parker, 710 S.W.2d at 147; State v. Stevenson, 958 S.W.2d 824, 829 (Tex.Crim.App. 1997) (asserting that the mere fact that the suspect becomes the focus of a criminal investigation does not convert a roadside stop into an arrest) (citing Berkemer v. McCarty, 468 U.S. 420 (1984)); Hutto v. State, 977 S.W.2d 855, 858 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (holding that an officer's investigation by field sobriety testing and questioning did not turn into an arrest until officer informed the appellant that he was under arrest for DWI). The temporary detention of appellant did not amount to a custodial arrest. Thus, because appellant was not in custody the officer's questions resulting in the oral statements did not constitute "custodial interrogation," and counsel was not ineffective for failing to object to their admission. We overrule appellant's point of error number three. We affirm the judgment of the trial court.