Opinion
No. 05-07-01372-CR
Opinion Filed April 21, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-19104-M.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Appellant appeals his conviction for aggravated robbery. After a jury found appellant guilty of the offense, the trial court assessed punishment at seventy-five years' confinement. In two points of error, appellant contends (1) the evidence is factually insufficient to support the jury's verdict, and (2) he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment. Appellant was indicted for aggravated robbery. The complainant, Janice Bodwich, was a security guard at a distribution center for a carpet company. On the night of the offense, a man drove up in a truck cab owned by McGuire Transportation, Inc. Bodwich thought the man was picking up a load, but when he approached her guard booth, he pointed a gun at her and told her it was a robbery. Bowditch testified that although it was nighttime, the area was well lit and she got a good look at the man as he approached her. She identified appellant as the robber. Appellant grabbed her, turned her around so her back was facing him, and pushed her into his truck. He then asked her which of two trailers at the distribution center had carpet in them. She told him both. Appellant backed his cab up to one of the trailers. When he got out of the truck to attach the trailer, he ordered Bowditch out of the truck, with her back facing him. Bowditch fell when she got out of the truck. When she stood, she saw appellant's face a second time. After appellant attached the trailer, he ordered Bowditch back in the truck and drove away. Bowditch sat on the floor board with her head down on the passenger seat. Eventually, appellant stopped the truck on the side of the road near some warehouses. He told her to get out of the car and get on her knees. He put his gun to the back of her head and fired two shots over her head. A day or two after the offense, Bowditch went to the police station to view a photographic line-up. She identified appellant as the man that robbed her. The State also presented evidence that appellant was employed by McGuire Transportation. In his first point of error, appellant contends the evidence is factually insufficient to establish his identity as the person that committed the offense. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt, even if sufficient standing 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). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705. Here, the victim identified appellant, both in a pretrial line-up and in open court, as the person that committed the offense. Although Bowditch testified that appellant forced her not to look at him during the majority of the lengthy ordeal, she testified she got a good look at him when he first approached her and again when she fell out of the truck. Further, the State also presented evidence that appellant worked for the same truck company as the truck that was used in the offense. Finally, appellant does not direct this Court to any evidence contrary to the verdict. After reviewing all the evidence in a neutral light, we conclude evidence is factually sufficient to prove identity. We overrule appellant's first point of error. In his second point of error, appellant contends he received ineffective assistance of counsel. Specifically, he contends counsel was ineffective for failing to object to his sentence as disproportionate to the crime. Before this court may conclude that trial counsel was ineffective for failing to object to appellant's sentences, appellant must show that if he had objected, the trial court would have erred in overruling the objection. Jacoby v. State 227 S.W.3d 128, 131-133 (Tex.App.-Houston [1st Dist.], 2006, pet. ref'd); see Jagaroo v. State, 180 S.W.3d 793, 800 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Appellant however cites no authority and provides no legal argument to show his sentence was disproportionate. Thus, this point is inadequately briefed and presents nothing to review. Nor could we conclude on this record that appellant's sentence was grossly disproportionate to the crime. In the course of the aggravated robbery, appellant abducted the victim and held her for one-and-a-half to two hours. When he did release her, he held a gun to her head, and twice fired over her head. While appellant may have told the victim he was "no murderer," we cannot agree the sentence assessed is grossly disproportionate to the gravity of the offense. See Solem v. Helm, 463 U.S. 277, 291-92 (1983). Moreover, appellant has done nothing to compare his sentence to the sentences imposed on other criminals in the same or other jurisdictions. See id. at 291-92. In light of these facts, we cannot agree counsel was ineffective for failing to object to appellant's sentence. Jacoby, 227 S.W.3d at 131-133. We overrule appellant's second point of error. We affirm the trial court's judgment.