No. 05-02-00481-CR
Opinion issued May 20, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F02-00255-SL AFFIRMED
Before Justices WHITTINGTON, RICHTER, and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice Lagarde.
Ray Jackson appeals his aggravated robbery conviction after a jury trial. In three issues, appellant complains the evidence is factually insufficient to support his conviction, his trial counsel rendered ineffective assistance; and the deadly weapon finding should be deleted from the judgment. We affirm the trial court's judgment.
Background
The relevant facts are as follows. On November 27, 2001, appellant entered a supermarket and began placing items of meat into his jacket. He was confronted by the store manager, Alex Cabrera. Cabrera testified that he demanded that appellant return what he had taken and instructed an employee to call 911. According to Cabrera, appellant then exhibited an open buck knife and told Cabrera to "call 'em off." Cabrera stated that he was scared and thought that appellant might stab him. Cabrera slowly moved away from appellant, who then ran out of the store. Jason Luckey, another supermarket employee, also testified that he saw appellant pull out a knife while he was standing close to Cabrera and say "Don't touch me," "Don't call the police," "I just want to leave the store." Appellant testified on his own behalf. He stated that he and Cabrera were part of a scheme to steal items from the store. Appellant noted that Cabrera confronted him in the store only after appellant failed to leave a watch for Cabrera in a predesignated area. Appellant asserted the watch was partial payment for Cabrera's participation in the scheme. He indicated that when Cabrera confronted him, he unzipped his jacket and the items he took fell to the ground along with a small pocket knife which he picked up before running out of the store. Appellant denied that he ever pulled a knife on Cabrera. Cabrera denied any knowledge or involvement in a scheme to steal from the store. Appellant was later apprehended after a police chase. A buck knife was recovered in the area where appellant was pursued and ultimately arrested. Appellant stated the buck knife found by police was not his. A police officer testified that the knife described by Cabrera was capable of causing serious bodily injury or death. Discussion
In his first issue, appellant argues the evidence is factually insufficient to support his conviction because the State failed to prove that he used or exhibited a deadly weapon. In his third issue, appellant contends the deadly weapon finding must be deleted from the judgment for the same reason. We review challenges to the factual sufficiency of the evidence using well-known standards of review. See Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000). We must determine whether a neutral review of the trial evidence reveals the proof of guilt is so weak as to undermine confidence in the jury's determination or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof. Id. at 11. The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). The factfinder may believe or disbelieve all or any part of any witness' testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A person commits the offense of aggravated robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he (1) knowingly or intentionally threatens or places another in fear of imminent bodily injury or death, and (2) uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon 2003). Because a knife is not a deadly weapon per se, the State must show that appellant used the knife in a manner that caused, or had the potential to cause, death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 502-03 (Tex.Crim.App. 2000). In this case, two witnesses testified that appellant exhibited a knife after he was confronted by the store manager about stealing meat. And a police officer testified that the knife was capable of causing serious bodily injury or death. Appellant, on the other hand, testified he merely picked up a small pocket knife that fell from his jacket during the confrontation. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the evidence is factually sufficient to show appellant exhibited or used a deadly weapon. We resolve appellant's first and third issues against him. In his second issue, appellant asserts counsel was ineffective in not objecting to the admission of the knife based on the State's failure to establish a proper chain of custody. To succeed on an ineffective assistance of counsel claim, 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). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). The defendant must prove, by a preponderance of the evidence, there is no plausible professional reason for the specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Moreover, the record must be sufficiently developed to overcome the strong presumption that counsel provided reasonable assistance. Thompson, 9 S.W.3d at 813. In most cases, an appellant cannot satisfy his burden based upon a silent record. Thompson, 9 S.W.3d at 813-14. In such a case, 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). Appellant filed a motion for new trial but did not raise an ineffective assistance of counsel ground. Thus, there is no record to explain the motivation behind counsel's failure to object and whether it resulted from strategic design or negligent conduct. Because the record is silent as to why trial counsel did not object to the admission of the knife on chain of custody grounds, appellant has not met his burden of establishing his counsel's performance was deficient. We therefore resolve appellant's second issue against him. We affirm the trial court's judgment.