Nos. 05-04-0361-CR, 05-04-0362-CR
Opinion Issued May 5, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-00122-Kw F04-00123-KW. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
Opinion By Justice WHITTINGTON.
Rodney Dean Bethany appeals his convictions for aggravated robbery of an elderly person and robbery. After finding appellant guilty of both offenses, the jury assessed punishment at life confinement in each case. In four issues, appellant contends the evidence is factually insufficient to support his convictions and that he received ineffective assistance of counsel at trial. We affirm the trial court's judgments.
Factual Sufficiency of the Evidence
In his third and fourth issues, appellant contends the evidence is factually insufficient to support his convictions because there is no evidence showing appellant was the person who committed the offense. We disagree. When reviewing challenges to the factual sufficiency of the evidence, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 1697 (2005) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly causes bodily injury to another. Tex. Pen. Code Ann. § 29.02(a)(1) (Vernon 2003). A person commits aggravated robbery if he (i) commits robbery and (ii) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death and the other person is 65 years of age or older. Tex. Pen. Code Ann. § 29.03(a)(3)(A) (Vernon 2003). At trial, Lasonya Martin testified she and appellant were living together and decided to look at apartments in Balch Springs. They had Martin's baby, Alexander, with them when they stopped at the Autumn Run Apartments. They told the manager, a "white, older, heavyset woman," they were looking for an apartment special. According to Martin, she and appellant were ready to leave the manager's office when appellant asked the manager if he could put some water in the baby's bottle. The manager took appellant back to a sink where he filled the bottle. When he returned, he handed Martin the bottle, and she stood up to leave. She turned around, then heard a loud noise. Looking back, she saw the manager on the floor. Appellant had hit her, knocking her to the ground. Appellant kneeled by the manager, removing the rings from her finger. He told Martin to close the blinds and lock the door. She was in shock but did as she was told. After about three minutes, she opened the door to leave. There was a "Chinese guy" standing there. Appellant told her to leave so she went to the car. He pulled the "Chinese guy" in the office. When appellant came out, he had the manager's purse and the man's wallet. Appellant told Martin "he beat the guy up, that [there] was a lot of blood in there." They left and drove to a gas stations where appellant used a credit card to fill the gasoline tank. Keeping the credit cards and cash, he threw the purse and wallet in a trash dumpster. When asked whether appellant said anything when he came out of the office with the stolen items, Martin said, "He was happy. I guess he enjoyed what he did . . . he was telling me about the rings, that they were real, that he could make a lot of money off of 'em." Approximately one month after the incident at the apartment complex, the police found Martin and appellant living at the Budget Suites in north Dallas. On cross-examination, Martin testified she did not use the credit cards appellant stole but that a mutual friend, Camille, tried to use one of the cards at a Pizza Hut. Martin conceded she had previously "committed the offense of credit card abuse." Officer Billy Don Watts testified he responded to a call about the robberies. When he arrived at the scene, the office was torn up, papers were strewn about, and there was quite a bit of blood on the floor. He spoke with the victims and got a description of the vehicle involved. When he received a report that someone had tried to use one of the credit cards at a Pizza Hut, he tracked down Latrice Lafayette Camille. Acting on the information Camille gave him, Officer Watts went to the Budget Suites at I-635 and Forest Lane and was able to speak with Martin. She cooperated with Officer Watts, giving him appellant's name and date of birth. When the police computer indicated there was a warrant for appellant's arrest on a parole violation, Officer Watts arrested him and transported him to jail. The officer compiled a photographic lineup which he showed to the apartment manager, Lila Massey. She made a positive identification of appellant "really, really fast." The other victim, Sopheap Ean, was unable to make a positive identification. Massey testified she was 70 years old at the time of the robbery. She was working at the apartment complex on March 8, 2003 as manager when appellant and a woman with a baby came in, looking for an apartment. When appellant asked for some water for the baby's bottle, she took him back to the sink. When he came back, he gave the bottle to the baby, then hit Massey with his fist. Massey did not remember what happened from that point until the police arrived. Her face was swollen, bruised, and cut, and she required stitches. She was in the hospital for several days and rehab after that. Ean testified he was the maintenance man at the apartment complex. He had been in the manager's office but left to get lunch. When he returned, there was a man, a woman, and a baby in the office. The man said he had a gun and threatened Ean. He told Ean to turn around which Ean did, but when Ean tried to lie down, the man hit him in the face. Ean offered the man his wallet which he took. He then hit Ean again. Ean did not know how many times he was hit but knew he blacked out. When he woke, he called his mother who told him to call the police. Ean could not identify the man who robbed him. Ean had four stitches in his face and was in a lot of pain. In contrast, appellant's sister, Falenthia Tatum, testified appellant was at a barbeque dinner at her house on the day of the robbery. She remembered it was March 8, because appellant showed up with his girlfriend, Ebony, whose birthday was March 2. She knew appellant was living with Martin but he was also seeing Ebony. According to Tatum, appellant and Ebony showed up around 12 or 12:30 in the afternoon. She was guessing about the time, and she could not remember what they did that afternoon but she knew it was March 8, 2003. In sum, the evidence showed appellant hit Massey with his fist and took her rings and purse. When Ean appeared at the door, appellant told Martin to leave, then hit Ean with his fist and took his wallet. With respect to his factual sufficiency challenge, we note the jury was the factfinder in these cases and, as such, was entitled to believe or disbelieve each witness's testimony. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case in a neutral light, that the jury was rationally justified in finding appellant committed (i) robbery by causing bodily injury to Ean in the course of committing theft and with intent to obtain or maintain control of Ean's property and (ii) aggravated robbery by committing robbery and causing bodily injury to Massey who, at the age of 70, was 65 years of age or older. See Tex. Pen. Code Ann. §§ 29.02(a)(1), 29.03(a)(3)(A) (Vernon 2003). The State's evidence was not too weak to support these findings of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is factually sufficient to support appellant's convictions for aggravated robbery and robbery. We overrule appellant's third and fourth issues. Ineffective Assistance of Counsel
In his first issue, appellant claims trial counsel was ineffective for failing to request an accomplice witness instruction in the jury charge. In his second issue, appellant claims we must reverse his convictions because he received "overall ineffective assistance of counsel," as evidenced by counsel's failure to (i) file any pretrial motions, (ii) investigate the crime, (iii) properly voir dire the venire panel, or (iv) challenge appellant's arrest. We disagree with both arguments. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). In brief, it is appellant's burden to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812. The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Although appellant filed a motion for new trial, the complaint raised in his motion was that the "verdict is contrary to the law and evidence." His motion did not allege he received ineffective assistance of counsel at trial. Therefore, as was the case in Thompson, the record provides no discussion of trial counsel's purported errors. It contains no discernible explanation of the motivation behind counsel's decision not to object to the jury charge or to request an accomplice witness instruction. Nor does it address any of the other complaints raised under his second issue. Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose off establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). We overrule appellant's first and second issues. We affirm the trial court's judgments.