Opinion
No. 05-02-00530-CR
Opinion Filed May 30, 2003 Do Not Publish
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-00251-RS. AFFIRM
OPINION
Appellant appeals his conviction for capital murder. After a jury found appellant guilty, the trial court assessed a mandatory life sentence. In ten points of error, appellant contends: (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court lacked jurisdiction, (3) appellant is entitled to a hearing on his motion for new trial with "conflict-free" appellate counsel, and (4) he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for capital murder alleging appellant committed murder in the course of committing or attempting to commit robbery. At trial, the State presented evidence that appellant killed the victim behind a dumpster and stole her watch. Specifically, eyewitnesses saw appellant fighting with the victim near a dumpster at an apartment complex and called police. When police arrived, they directed flashlights toward the dumpster, and appellant emerged. Appellant told police that his friend was behind the dumpster. Police then found the victim. She was unclothed from the waist down and had been strangled to death. When appellant was arrested, a "Winnie the Pooh" watch was found in his boot. The victim's daughter testified the watch belonged to her mother. Appellant testified at trial and claimed the victim was a prostitute and offered to have sexual relations with him for $50. When the woman first approached him, she was in a car with two black men and appellant ignored her offer. However, she returned on foot shortly thereafter and repeated her offer. Appellant followed the victim to the dumpsters. He admitted fighting with the victim near the dumpsters because she took his wallet. After they struggled over the wallet, they went behind the dumpsters and embraced. Appellant was then attacked from behind and he lost consciousness. When he awoke, he saw the victim on the ground. He denied killing the victim or stealing her watch. He claimed the first time he saw the Winnie the Pooh watch was when police found it in his boot. After hearing the evidence, the jury found appellant guilty of capital murder. Specifically, the jury found appellant murdered the victim in the course of committing or attempting to commit robbery. In appellant's first through sixth, and tenth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings so as to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. A person commits capital murder if he intentionally or knowingly causes the death of an individual in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003). For a murder to qualify as a capital murder under this definition, the killer's intent to rob must be formed before or at the time of the murder. Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995). Thus, proof of a robbery committed as an afterthought and unrelated to a murder will not provide sufficient evidence of capital murder. Id. However, if there is evidence from which a rational trier of fact could conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the property either before or during the commission of the murder, then the State has proven the murder occurred in the course of robbery. Id. In these points, appellant attacks the sufficiency of the evidence to support various evidentiary facts, rather than the elements of the offense. We will instead review the sufficiency of the evidence in light of the elements of the offense, addressing appellant's arguments as they relate to those elements. We first conclude the evidence is legally and factually sufficient to show appellant murdered the victim. The State presented evidence, and appellant did not dispute, that he fought with the victim shortly before she was found dead behind the dumpsters. Although appellant claimed he and the victim were attacked, the eyewitness accounts showed no other individuals were around the dumpster at the time of the murder. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant killed the victim. We have further viewed all the evidence in a neutral light, and having done so, we cannot conclude (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Therefore, the evidence is legally and factually sufficient to show appellant committed murder. We likewise conclude the evidence is legally and factually sufficient to show appellant committed the murder in the course of committing theft. The State presented evidence that appellant murdered the victim and was found minutes later with her watch hidden in his boot. Appellant did not attempt to explain how the watch got in his boot, claiming only that the first time he saw the watch was when police found it. Although appellant suggests the watch could have fallen into his boot, police testified appellant wore the boots underneath his jeans. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could infer that appellant formed the intent to steal the watch before or during the murder. See Powell v. State, 88 S.W.3d 794, 798-99 (Tex.App.-El Paso 2002, no pet.). Further, after reviewing all the evidence in a neutral light, we cannot conclude (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Therefore, the evidence is legally and factually sufficient to show appellant committed the murder in the course of committing or attempting to commit theft. In reaching this conclusion, we necessarily reject appellant's assertion that there was no evidence the Winnie the Pooh watch found in his boot was the victim's watch. At trial, the victim's daughter identified the Winnie the Pooh watch as belonging to her Mother. According to the victim's daughter, her mother always wore the watch, but the victim was not wearing the watch when her body was found. Appellant, however, did have an identical watch in his boot, which he could not explain. A rational trier of fact could conclude the watch belonged to the victim. We overrule appellant's first, second, third, fourth, fifth, sixths, and tenth points of error. In his seventh point of error, appellant contends the trial court lacked jurisdiction because he was a juvenile ( i.e. under seventeen years of age) at the time of the offense and the juvenile court never transferred jurisdiction. We begin by noting evidence at trial concerning appellant's age was not consistent. The State presented evidence that appellant gave police varying information regarding his age. Specifically, appellant told arresting officers that he was born on October 23, 1981, which would have made him nineteen years old. He also told another officer that he was born on October 23, 1981, but claimed he was twenty-one years old. Appellant's own witness and roommate at the time of the offense, Rogelio Herrera Montez, testified appellant was seventeen years old at the time of the offense. However, appellant testified he was sixteen at that time. He said he lied to police about the year he was born so his father would not find out about his arrest. The defense offered a certified copy of a Mexican birth certificate showing appellant would have been sixteen at the time of the offense. Although the birth certificate was certified on August 27, 2001, the day after the murder, appellant admitted he did not tell anyone his birth date until that Monday, the day the jury was selected and testimony began. Nevertheless, we will assume, for purposes of this opinion, appellant showed he was a juvenile at the time of the offense. Article 4.18 of the code of criminal procedure provides that a claim that a district court does not have jurisdiction because jurisdiction is exclusively in the juvenile court must be made by written motion filed with the court in which criminal charges are filed. See Tex. Code Crim. Proc. Ann. art. 4.18(a)(b) (Vernon Supp. 2003). In a jury trial, the motion must be filed and presented before jury selection begins. Id. A person who fails to file a timely motion cannot contest the jurisdiction of the district court. Id. In this case, appellant did not file a motion contesting the trial court's jurisdiction, timely or otherwise. Consequently, pursuant to article 4.18, appellant cannot contest jurisdiction. See id; see also Rushing v. State, 85 S.W.3d 283, 286 (Tex.Crim.App. 2002). Appellant nevertheless asserts article 4.18 is unconstitutional as a violation of his rights under the United States Constitution. Appellant first asserts article 4.18 violates his right to equal protection of the law because he is treated differently than a juvenile who timely notifies the trial court of his juvenile status. He asserts there is no rational basis for this distinction in cases where a juvenile, like himself, has committed a serious crime for which he might not be eligible for probation. See Light v. State, 993 S.W.2d 740, 747 (Tex.App.-Austin 1999) (explaining rationale for requiring a juvenile to object in the trial court is to prevent a juvenile from obtaining probation in criminal court then using his juvenile status to defeat a motion to revoke probation), judgm't vacated on other grounds, 15 S.W.3d 104 (Tex.Crim.App. 2000). To preserve for appellate review an attack on the constitutionality of a statute as applied to him, an appellant must first have raised the issue in the trial court. Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995). Here, appellant did not raise his constitutional challenge in the trial court. However, appellant asserts he can raise his complaint for the first time on appeal because he is challenging the facial constitutionality of a statute upon which his conviction was based. See Rabb v. State, 730 S.W.2d 751, 752 (Tex.Crim.App. 1987). However, the substance of appellant's argument is not a facial challenge. Rather, he complains there is no justification for requiring him to challenge jurisdiction in the trial court because he was charged with the serious crime of capital murder. Because the substance of appellant's complaint is an as applied challenge, appellant waived error by not raising his complaint in the trial court. See Curry, 910 S.W.2d at 496. Appellant also asserts article 4.18 violates his due process rights and his rights under the Eighth Amendment. Appellant provides no meaningful legal analysis or argument under these complaints. We conclude they are inadequately briefed and present nothing to review. See Wood v. State, 18 S.W.3d 642, 650 (Tex.Crim.App. 2000) (concluding appellant waived facial challenge to penal code provision by failing to support his argument with authority and failing to adequately develop his argument.). We overrule appellant's seventh point of error. In his eighth point of error, appellant contends he is entitled to a remand for proceedings on his motion for new trial. Appellant does not dispute that he was represented by counsel after his conviction and that his counsel filed a motion for new trial. However, he contends his trial counsel had a conflict of interest because she was ineffective during trial. Therefore, he asserts he is entitled to another attorney to present a motion for new trial. This point is premised on appellant's assertion that his attorney should have raised ineffectiveness in a motion for new trial. See, e.g. Champion v. State, 82 S.W.3d 79, 83 (Tex.App.-Amarillo 2002, no pet.) However, because appellant has not shown trial counsel was ineffective, or that his trial counsel was aware that appellant desired to raise this claim on appeal, we cannot conclude trial counsel had a conflict of interest. Indeed, to hold otherwise, trial counsel, who is often in the best position to present a motion for new trial, could never represent a defendant in post-judgment proceedings. We overrule appellant's eighth point of error. In his ninth point of error, appellant contends he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The defendant must prove, by a preponderance of the evidence, there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In most cases, a silent record will not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813-814. In such cases, we need not speculate as to the basis for trial counsel's decisions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant first asserts counsel was ineffective for failing to defeat jurisdiction by filing a plea in bar based on appellant's juvenile status. However, the record shows trial counsel was not aware of appellant's alleged age until it was too late to contest the trial court's jurisdiction. Although appellant gave police inconsistent information regarding his age and date of birth, appellant never told police he was a juvenile and there is nothing in the record to otherwise show counsel should have known appellant was a juvenile. We conclude appellant has not shown counsel was ineffective for failing to file a motion contesting the trial court's jurisdiction. Appellant next asserts his trial counsel was ineffective for failing to object to a jury charge instructing the jury that appellant's status as a juvenile did not affect the trial court's jurisdiction over him. The record contains no reasons for counsel's failure to object, and we cannot conclude there is no plausible basis for counsel's actions. Therefore, appellant has not met his burden to show ineffective assistance. Appellant also asserts counsel was ineffective for failing to seek suppression of evidence obtained in violation of his rights as a juvenile. Specifically, appellant asserts trial counsel should have filed a motion to suppress or requested a jury instruction regarding whether appellant's statement was taken in violation of his rights as a juvenile. Appellant's complaint here is premised on his assumption that a juvenile who misrepresents his age to authorities is entitled to the protection of the family code regarding the questioning of juveniles. Appellant cites no authority to support this assertion. Therefore, he has not shown his trial counsel was ineffective. See Mallet v. State, 9 S.W.3d 856, 867 (Tex.App.-Fort Worth 2000, no pet.); Ryan v. State, 937 S.W.2d 93, 98 (Tex.App.-Beaumont 1996, pet. ref'd). Finally, appellant asserts trial counsel should have withdrawn after judgment to allow another attorney to file a motion for new trial based on ineffective assistance. However, absent a showing of ineffective assistance in the first instance, we cannot conclude trial counsel should have withdrawn. We overrule appellant's ninth point of error. We affirm the trial court's judgment.
We recognize trial counsel may not be in the best position to present a motion for new trial based specifically on ineffective assistance. However, it is well established ineffective assistance is generally best presented by habeas corpus. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999).
We do not agree with appellant's assertion that his "youthful appearance" should have alerted trial counsel to the fact appellant might have been a juvenile. To the contrary, our review of photographs taken at the time of appellant's arrest would not have put counsel on notice that appellant may have been a juvenile.