Summary
concluding evidence factually sufficient to support finding that defendant used and exhibited a deadly weapon when both complainants testified that defendant lifted his shirt to reveal a brown gun handle and demanded money, that they believed defendant possessed a real gun and felt threatened by him, and immediately complied with the defendant's demand
Summary of this case from Colquitt v. State No. 05-03-00464-CR
Opinion Filed July 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-48564-R. Affirm.
Before Justices FITZGERALD, RICHTER, and LANG.
Opinion By Justice RICHTER.
Frederic L. Paige appeals his jury conviction for aggravated robbery. In two points of error, appellant complains his counsel was ineffective and the evidence is factually insufficient to support the conviction. We affirm.
Background
Teresa Arana and Loraina Ortiz were working at the Family Dollar Store at 113 E. Jefferson in Dallas when a male customer approached to pay for a lollipop. As Ortiz closed the register and gave the customer his change, the customer demanded that Ortiz "hand him the money." Ortiz gave him the money from the "top tray," and the customer then demanded she give him the money kept under the tray. When Ortiz did not immediately comply, the customer lifted his shirt, revealing what appeared to be the handle of a gun, and again demanded the money kept under the tray. Ortiz lifted the tray, and the customer grabbed the money and left the store. Arana then ran to inform the manager, who called the police. The officers arrived within minutes and obtained descriptions of the robber from Ortiz and Arana. According to both Ortiz and Arana, the robber had a name tattooed on his neck. Although Ortiz could not remember the name, Arana informed the officers the name was "Paige." Arana subsequently identified appellant as the robber. Numerous witnesses testified at trial, including the defendant. The State's first two witnesses were Ortiz and Arana, both of whom recounted the robbery. Both also testified they believed the gun was "real," although they were not certain it was not a toy, that the handle was brown, that they were frightened by the gun, and that appellant placed them "in fear of imminent bodily injury or death." In addition, Ortiz testified that over $1,000 had been stolen. Dallas police officer Rikicia Robinson testified she arrived at the store within minutes of the call and found both Ortiz and Loraina "shaken" and upset. Robinson also testified that she called for a physical evidence officer to check for fingerprints. However, no fingerprints or any other physical evidence were recovered. Three other officers testified concerning appellant's arrest. According to undercover officer Daniel Moreno, he and two back-up officers were in the downtown area to serve appellant with an arrest warrant when Moreno noticed appellant blocking traffic with his car. Moreno notified the back-up officers so they could initiate a traffic stop, but when the back-up officers arrived and attempted to stop appellant, appellant drove away. Moreno then pulled in front of appellant's car, and at a red light, got out of his car just as the back-up officers opened their squad car door. As the back-up officers approached appellant, appellant drove towards Moreno. Moreno aimed his weapon at appellant, identified himself as an officer, and ordered appellant to stop his car. Appellant made eye contact with him, accelerated, and then hit Moreno. In defense, Moreno shot three times, but appellant continued driving, leading several officers on a high-speed chase through downtown and a neighboring area. Appellant eventually abandoned his car and was arrested several minutes later after assaulting two other officers. Appellant was subsequently indicted on three charges of aggravated assault on a public servant. The charges were pending at trial. Testifying in his defense, appellant admitted he had shopped at the Family Dollar Store before, but denied robbing it and denied even owning a gun. According to appellant, he was at an AutoZone at the time of the robbery and then had his car repaired at a nearby Exxon station. As for the events leading to his arrest, appellant testified that he was unaware that officers were pursuing him. He explained he did not hear Moreno identify himself as an officer and that when he saw Moreno with the gun, he panicked and "took off." He also explained he assaulted the other two officers because they were trying to spray mace in his face. On cross-examination, appellant admitted to a prior misdemeanor theft conviction. Also testifying for the defense were the AutoZone manager and a private investigator. The AutoZone manager confirmed appellant had made a purchase there within fifteen minutes of the robbery and stated the AutoZone was approximately two miles from the Family Dollar Store. The investigator testified he verified with the Exxon station personnel that appellant had been there on the day the Family Dollar Store was robbed. In rebuttal, the State called two clerks from another Family Dollar Store which had been robbed twice by a customer later identified as appellant. According to these witnesses, in each instance, the robber approached them to purchase bubble gum, and as they closed the register and gave him his change, he demanded the money in the registers. In each instance, the robber also lifted his shirt and showed them a gun. Charges against appellant for these two robberies were pending at the time of trial. The defense then presented alibi testimony concerning one of the pending robberies. Appellant also took the stand and denied committing either of those robberies. The jury returned a general verdict of guilt and assessed punishment at twelve years, six months, and twenty-two days confinement. Ineffective Assistance of Counsel
In his first point of error, appellant complains his counsel was ineffective for "allowing" into evidence appellant's prior theft conviction and pending aggravated assault charges. Appellant notes his counsel filed a pretrial "omnibus" motion requesting, among other items, notice of the State's intent to use evidence of prior convictions and extraneous offenses. Counsel obtained a ruling on the other requests in his motion, but for reasons unclear in the record, did not obtain a ruling on this particular request. At trial, counsel "allowed" the prosecutor to impeach appellant with evidence of the prior theft conviction, elicit testimony concerning the three pending assault charges, and repeatedly argue this evidence in closing argument. Appellant maintains that neither the theft conviction nor the evidence of the pending assault charges was admissible and that counsel's failure to obtain a ruling on his request for notice of intent to use extraneous offense evidence or otherwise obtain that information, failure to object to the extraneous offense evidence, and failure to request appropriate jury instructions regarding this evidence amounted to deficient performance and resulted in his "be[ing] tried for being a criminal generally." Appellant further argues that but for counsel's errors, the result of trial would have been different. We disagree. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In reviewing an ineffective assistance of counsel claim, we indulge a strong presumption that counsel was competent. Thompson, 9 S.W.3d at 813. Unless "counsel's ineffectiveness is so apparent from the record," an appellant must have a record showing counsel's actions did not result from strategic design and fell below "prevailing professional norms" in order to establish deficient performance. Freeman v. State, 125 S.W.3d 505, 507 (Tex.Crim. App. 2003); Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim. App. 2000); Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). In order to establish prejudice, an appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Cardenas, 30 S.W.3d at 391. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. In this case, the record is silent as to the motivation behind counsel's actions and his ineffectiveness is not so apparent from the record. In fact, all of the complained-of omissions are matters of trial strategy. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App. 2001) (burden of proof and limiting instructions); Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.-Beaumont 1996, pet. ref'd) (notice of intent to admit extraneous offense evidence); Weeks v. State, 894 S.W.2d 390, 391-92 (Tex. App.-Dallas 1994, no pet.) (objections); Wills v. State, 867 S.W.2d 852, 857 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd) (rulings on pretrial motions). Without an explanation from counsel concerning his choices, we cannot conclude counsel's performance was deficient. We overrule appellant's first point of error. Sufficiency of the Evidence
In his second point of error, appellant complains the evidence is factually insufficient to show he had a "real" gun during the robbery. Appellant maintains Arana's and Ortiz's testimony that appellant had a gun was too weak to support a finding that he used and exhibited a deadly weapon and was outweighed by the lack of physical evidence and appellant's own testimony that he did not own a gun. We disagree. In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, * 7 (Tex.Crim.App. April 21, 2004). In making this determination, we are mindful that the trier of fact is the exclusive judge of the witnesses' credibility and the weight of the testimony and may accept or reject all or part of the evidence of either side. Bruno v. State, 922 S.W.2d 292, 293 (Tex. App.-Amarillo 1996, no pet.). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or when the contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Zuniga, No. 539-02, 2004 WL 840786, *7. Under Texas Penal Code section 29.03, a person commits aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally and knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 1994); see also §§ 29.02(a)(2) (robbery), 31.03(a) (theft). A firearm is a deadly weapon per se, and testimony by a witness that a defendant used a firearm during the commission of the offense is sufficient to support a finding of use and exhibition of a deadly weapon. Id. § 1.07(a)(17)(A); Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App. 1985). The term "gun" encompasses both firearms and non-lethal instruments. See Benavides v. State, 763 S.W.2d 587, 588 (Tex. App.-Corpus Christi 1988, pet. ref'd) (citing O'Briant v. State, 556 S.W.2d 333, 335-36 (Tex.Crim. App. 1977)). As the fact-finder, a jury may draw reasonable inferences and make reasonable deductions from the evidence that a gun was used in the commission of a crime, and the gun was a firearm. Id. at 588-89; see also Toy v. State, 855 S.W.2d 153, 159 (Tex. App.-Houston [14th Dist.] 1993, no pet.). A defendant's threatening behavior with a gun in itself suggests the gun was a firearm rather than merely a non-lethal gun. Toy, 855 S.W.2d at 159; Benavides, 763 S.W.2d at 589. Viewing the evidence in this case under a neutral light, we conclude the evidence supporting the use and exhibition of a deadly weapon is not too weak to support the finding of guilt beyond a reasonable doubt and the contrary evidence is not so strong that the beyond-a-reasonable doubt standard could not have been met. Arana and Ortiz both testified that when Ortiz did not immediately comply with appellant's demand to give him the cash under the tray, he lifted his shirt, revealed a "brown gun handle," and again demanded the money. They further testified they believed the gun to be real and felt threatened by it. In fact, upon seeing it, Ortiz immediately complied with appellant's demands. Additionally, the jury heard evidence that appellant had displayed a gun during two other robberies in order to secure compliance with his demands for cash. This evidence gives rise to a reasonable inference that appellant used a gun, and thus a firearm, during the robbery at hand Although Arana and Ortiz could not rule out the gun was a toy and appellant denied owning a gun, the jury chose to disbelieve this testimony as evidenced by its verdict of guilt. This was within their exclusive province. See Bruno, 922 S.W.2d at 293. We overrule appellant's second point of error. We affirm the trial court's judgment.