No. 13-06-179-CR
Opinion delivered and filed August 2, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 105th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ, Justices BENAVIDES and VELA.
ROSE VELA, Justice.
A jury convicted appellant, Martin Martinez, Jr., of two counts of aggravated robbery, and after finding him to be a repeat-felony offender, assessed punishment for each offense at twenty years' confinement, plus a $1,500 fine. By four issues, he complains: (1) of a defective indictment, (2) that the accomplice-witness testimony was not corroborated, (3) that the evidence is legally and factually insufficient to support the convictions, and, (4) that he received ineffective assistance of trial counsel. We affirm.
I. Background
Seventy-six-year-old Lois Daniel testified that on the morning of December 6, 2005, she was driving from the grocery store to her Corpus Christi home when she saw a black car following her. It followed her to the street where she lived. She parked in her driveway, and when she got out and opened the trunk, a man came up behind her and took her purse which had her checks. During the robbery, she injured her arm and knee. The robber then got into the passenger's side of the black car, which sped away. Daniel testified that about 4:45 p.m. that day, her husband received a phone call from "somebody from Fiesta [Mart] . . . [who] said they had a check . . . signed by me supposedly, but it wasn't, for $150. . . ." Her testimony showed that someone was trying to cash the check and that she did not write out the check. On the afternoon of the Daniel robbery, eighty-three-year-old Rosa Barnes was crossing a street in Corpus Christi when a man came up behind her and took her purse which contained her checkbook. During the robbery, she injured her left side, shoulder, and knees. The robber got into the passenger's side of a black car, which sped away. Mostafa Bighamian owned the Fiesta Mart in Corpus Christi. His testimony showed that on December 6, 2005, two Hispanic males came into his store. One of them, whom he identified from a photo spread as Ronnie Montez, asked him to cash a personal check for $150. Before deciding whether to cash it, Bighamian called the owner of the check and was told not to cash it because it was stolen. Bighamian told the two men he could not cash the check and handed it to them. David Reyes, who was a friend of Ronnie Montez, testified that in early December 2005, Montez and appellant asked him to cash the $476.32 check. Reyes deposited the check into his account at the H.E.B. credit union in Corpus Christi. Reyes did not give Montez the money that day. Reyes's testimony showed that appellant wanted the money that day. Officer Ralph Lee received the $476.32 check from H.E.B. Forensic analysis showed that one of appellant's fingerprints was on the check. At trial, Rosa Barnes identified the check as one of the checks from her checkbook which was inside her stolen purse. This check was issued to Ronnie Montez and showed Barnes to be the person who signed it. However, her testimony showed that she neither wrote out the check nor authorized anyone to write it for her. Officer Lee did not request an analysis of the handwriting on the check. During the guilt stage, the trial court admitted into evidence State's Exhibit 10, appellant's videotaped statement which he gave to Officer Lee. In his statement, appellant denied knowing anything about the purse snatchings. However, he admitted to being with Montez during Montez's endeavors to cash the checks. Appellant said that he and Montez were trying to cash a check "for drugs." They went to the Fiesta Mart to cash a check, and when Montez told him it was a "no go," he asked Montez, "Do you know of anybody else?" Montez told appellant that he knew someone with an account. Appellant and Montez went to the H.E.B. on Kostoryz where a man picked up Montez to cash the check which Montez had. Appellant stayed in Montez's car, and when they returned, Montez had "this paper" stating that they cashed the check but that there would not be any money available until the next day. Appellant told Officer Lee several times that he did not know where Montez got the checks. II. Discussion
A. Defective Indictment
By issue one, appellant asserts the indictment did not allege the crime of aggravated robbery because each count of the indictment stated that the victim was "a person 64 years of age or older,. . . ."The penal code provides that a person commits aggravated robbery if he or she "commits robbery as defined in Section 29.02, and . . . causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, and if the other person is: 65 years of age or older. . . ."Tex. Penal Code Ann. § 29.03(a)(3)(A) (Vernon 2003) (emphasis added). Appellant did not object to the indictment. Article 1.14(b) of the Texas Code of Criminal Procedure provides that: If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post conviction proceeding. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). In Sanchez v. State, 120 S.W.3d 359, 367 (Tex.Crim.App. 2003), the court explained that "[a]ny error in the charging instrument must be objected to in a timely (in this case, before trial) and specific manner, and any unobjected-to error in the instrument is not 'fundamental.'" Id. (parentheses in original); see also Salahud-Din v. State, 206 S.W.3d 203, 212 (Tex.App.-Corpus Christi 2006, pet. ref'd) ("Since omitting an element from an indictment is a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element."). Because counsel did not object to the indictment before trial, this issue is not preserved. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Sanchez, 120 S.W.3d at 367; Salahud-Din, 206 S.W.3d at 212. Issue one is therefore overruled. B. Corroboration of Accomplice-Witness Testimony
By issue two, appellant argues that the testimony of the accomplice witness, Ronnie Montez, was not corroborated. Montez's testimony showed that he drove the car to and from the robberies. He stated that appellant accosted the victims and took their purses. He also testified that appellant was present during the attempts to cash the stolen checks and that he gave appellant the money received from the cashed checks. Montez's testimony indicated that part of the reason for his involvement in the second robbery was so that he could get "high." An accomplice is a person who participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental state. Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App. 2006); Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004). Here, Montez was indicted for both aggravated robberies as a co-defendant; therefore, he is an accomplice as a matter of law. See Patterson v. State, 204 S.W.3d 852, 858 (Tex.App.-Corpus Christi 2006, pet. filed) ("A co-indictee is an accomplice as a matter of law.") (citing Hendricks v. State, 508 S.W.2d 633, 634 (Tex.Crim.App. 1974)). Under Texas law, a conviction cannot stand upon an accomplice's testimony unless other evidence tending to connect the defendant to the crime corroborates the testimony. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). Accordingly, in reviewing the record to determine whether there is "other evidence tending to connect the defendant with the offense committed," we exclude from consideration all testimony that needs to be corroborated under article 38.14. See id. The "tends-to-connect" standard presents a low hurdle for the State. Patterson, 204 S.W.3d at 859; see Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996); Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). As this Court stated in Patterson, "After all, the tends-to-connect evidence is unlikely to be the same evidence that proves guilt beyond a reasonable doubt. If the 'other evidence' required by the corroboration statute were always sufficient for conviction, there would be no necessity for the State to ever rely on accomplice testimony in the first place." Patterson, 204 S.W.3d at 859. Our court of criminal appeals has not formulated a precise rule concerning the quantum of evidence needed to corroborate the testimony of an accomplice witness, but it has provided some basic rules for our assistance. Dowthitt, 931 S.W.2d at 249; Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994). The evidence used for corroboration does not need to be, in itself, sufficient to establish guilt beyond a reasonable doubt. Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; see Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App. 1992). Nor must it directly link the accused to the commission of the crime. Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; Cox, 830 S.W.2d at 611. While the accused's mere presence in the company of the accomplice before, during, and after the commission of the crime is insufficient by itself to corroborate accomplice testimony, evidence of the accused's presence, combined with other suspicious circumstances, may tend to connect the accused to the crime. Patterson, 204 S.W.3d at 859; see Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 49; Cox, 830 S.W.2d at 611. Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Patterson, 204 S.W.3d at 859-60; see Dowthitt, 931 S.W.2d at 249; Munoz, 853 S.W.2d at 559. Further, the absence of "smoking gun" evidence does not invalidate evidence that does connect the accused to the crime. Trevino v. State, 991 S.W.2d 849, 852 (Tex.Crim.App. 1999); Patterson, 204 S.W.3d at 860. The corroboration is considered insufficient, however, if it merely shows the commission of the offense. Cocke, 201 S.W.3d at 747. The Independent Evidence
Here, both victims testified that a man came up behind them and took their purses, which contained the victims' personal checks. After each robbery, the man got into the passenger seat of a car, which sped away. This shows that two people were involved in the robberies. In his statement to Officer Lee, appellant admitted to being with Montez during their joint endeavor to cash a check for drugs. He and Montez went inside the Fiesta Mart where Montez tried to cash a check. When Montez told him it was a no go, appellant asked Montez if he knew of anybody else to cash the check. Montez said that he did. So, they went to the H.E.B. where a man picked up Montez to cash the check Montez had with him. David Reyes testified that he was the person who helped Montez cash the $476.32 check. Reyes's testimony showed that appellant and Montez wanted him to cash the check and that appellant wanted the money that day. Forensic evidence showed that one of appellant's fingerprints were on the $476.32 check. In his statement, appellant told Officer Lee that his (appellant's) handwriting might be on this check. Rosa Barnes testified that she neither wrote out the check nor authorized anyone to write it out for her. When the accused possesses fruits of the crime, such as stolen property at the time of a robbery, this fact tends to connect the accused with the commission of the crime and may be sufficient corroboration of accomplice testimony to warrant a conviction. Edwards v. State, 427 S.W.2d 629, 633 (Tex.Crim.App. 1968); Wincott v. State, 59 S.W.3d, 691,698 (Tex.App.-Austin 2001, pet. ref'd). Even though appellant did not have exclusive possession of the stolen checks, one court has stated that joint possession of stolen items may be sufficient to satisfy the corroboration requirements. See Cao v. State, 183 S.W.3d 707, 711 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Having reviewed the independent evidence, we conclude that the combined weight of the non-accomplice evidence tends to connect appellant to both robberies. We hold, therefore, that the requirement of article 38.14 has been satisfied. See Edwards, 427 S.W.2d at 633; Cao, 183 S.W.3d at 711; see also Patterson, 204 S.W.3d at 859 (evidence of the accused's presence, combined with other suspicious circumstances, may tend to connect the accused to the crime). We overrule issue two. C. Legal and Factual Sufficiency of the Evidence
By issue three, appellant challenges the legal and factual sufficiency of the evidence to support the convictions. In reviewing the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App. 2005). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). We must resolve any inconsistencies in the evidence in favor of the judgment. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005). We will set the verdict aside only if: (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. In other words, we may not simply substitute our judgment for the fact-finder's judgment. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). To reverse for factual sufficiency, we must determine, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. In examining a factual sufficiency challenge, we defer to the fact-finder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control over the property, he or she intentionally, knowingly, or recklessly causes bodily injury to a person sixty-five years of age or older. Tex. Penal Code Ann. § 29.02(a)(3)(A) (Vernon 2003). Intent can be inferred from the acts, words, and conduct of the defendant. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995); Lee v. State, 964 S.W.2d 3, 8 (Tex.App. — Houston [1st Dist.] 1997, pet. ref'd). In this case, neither victim identified appellant as the robber. However, circumstantial evidence, by itself, may be enough to support a conviction. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); see Smith v. State, 965 S.W.2d 509, 515 (Tex.Crim.App. 1998). It is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1994). In this case, a rational jury could have determined the following from the evidence: (1) two persons were involved in the robbery of each victim; (2) a man stole the victims' purses, which contained their personal checks; (3) during the robberies, both victims suffered bodily injury; (4) both victims were sixty-five years of age or older at the time each was robbed; (5) Montez drove the vehicle to and from both robberies; (6) appellant accosted the victims and took their purses; (7) after the robberies, appellant was with Montez when they tried to cash the stolen checks; (8) appellant's fingerprint was found on the $476.32 check, which was inside Rosa Barnes' stolen purse; and (9) Barnes, neither wrote out the $476.32 check nor authorized anyone to write it out for her. Appellant provided controverting evidence and argument that (1) neither victim could identify him as the person who robbed them, (2) the victims gave different descriptions of the man who robbed them, (3) Montez used crack cocaine, (4) Montez lied to investigators about where he got one of the stolen checks, and (5) appellant argues that his fingerprint on one of the stolen checks and his presence with Montez when Montez tried to cash the stolen checks did not link him to the aggravated robberies. Based on a neutral review of all the evidence, we conclude that the evidence is not so obviously weak or so greatly outweighed by contrary proof that it would not support the findings of guilty beyond a reasonable doubt. See Watson, 204 S.W.3d at 414-17. Viewing the evidence in the light most favorable to the verdict, we also conclude that a rational fact finder could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Issue three is therefore, overruled. D. Ineffective Assistance of Trial Counsel
By issue four, appellant complains he received ineffective assistance of trial counsel. To prove ineffective assistance of trial counsel, appellant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). First, he must show that counsel's representation fell below an objective standard of reasonableness. Second, he must show there is a reasonable probability that, but for counsel's errors, the result of the trial proceedings would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Determining whether this test has been satisfied on appeal is by judging the totality of the representation, not by focusing on isolated acts or omissions. Jaynes v. State, 216 S.W.3d 839, 851 (Tex.App.-Corpus Christi 2006, no pet.). Generally, isolated failures by counsel do not constitute error in light of the sufficiency of the overall representation. Id. In order for appellant to overcome this court's presumption of reasonable professional assistance, "'any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999)). 1. Montez's Videotaped Interview to the Police
In his first complaint, appellant argues trial counsel was ineffective because he allowed the jury to view Montez's videotaped interview in which Montez mentioned that appellant had been previously incarcerated. Trial counsel admitted Montez's videotaped interview into evidence for the purpose of cross examining Officer Ralph Lee. We point out that if counsel's reasons for his or her conduct do not appear in the record and there is "at least the possibility" that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective-assistance claim on direct appeal. Garza v. State, 213 S.W.3d 338, 348 (Tex.Crim.App. 2007). Here, trial counsel's reasons for his actions or intentions do not appear in the record, and his conduct could have been part of a reasonable trial strategy. Without more, we must defer to counsel's decisions and deny relief. See id. 2. Videotape Showing Appellant in Jail Clothing
Next, appellant complains trial counsel was ineffective because he failed to object when the trial court let the jury watch his videotaped interview to the police. He argues the videotape, which showed him wearing jail clothing, prejudiced him before the jury. Throughout this interview, appellant denied any knowledge of the purse snatchings, and he stated several times that he did not know where Montez got the stolen checks. Because there is "at least the possibility" trial counsel's conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. Garza, 213 S.W.3d at 348. Here, trial counsel's reasons for his actions or intentions do not appear in the record, and his conduct could have been part of a reasonable trial strategy. Without more, we must defer to counsel's decisions and deny relief. See id. 3. Comments Contained in Appellant's Videotaped Interview to the Police
Appellant asserts trial counsel was ineffective because he did not object to and redact certain comments contained in his videotaped interview to the police. The complained-of comments are as follows: (1) appellant's remark that he had a "record," (2) a comment from an interrogating police officer that he had contacted appellant's parole officer about the two robberies, and (3) a comment from an interrogating police officer that when appellant returned to jail, appellant could see the new charges. With regard to appellant's remark about his record, he stated that his record did not show that he was a good person. Immediately after making that remark, he said that he really was (a good person) and that he came from a good family. Concerning the remarks about appellant's parole officer and appellant's return to jail, the interview showed that appellant would not admit to any involvement in the robberies and that he insinuated that the police were not sure he was involved. This perturbed his interrogators and prompted one of them to tell appellant that he had notified his parole officer about the robberies and that when appellant returned to jail, appellant could see the robbery charges. Despite these remarks, appellant would not admit to the robberies. Because there is "at least the possibility" trial counsel's conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective-assistance claim on direct appeal. Garza, 213 S.W.3d at 348. In this case, trial counsel's reason's for his actions or intentions do not appear in the record, and his conduct could have been part of a reasonable trial strategy. Without more, we must defer to counsel's decisions and deny relief. See id. Issue four is overruled. The trial court's judgment is affirmed.