Opinion
No. 14-06-00551-CR
Memorandum Opinion filed July 12, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 230th District Court Harris County, Texas, Trial Court Cause No. 1047038.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant, Slobodan Petkovic, was convicted by a jury of the felony offense of tampering with a government record. The conviction was enhanced with two prior felony convictions. The trial court assessed punishment of 25 years' confinement in the Texas Department of Criminal Justice, Institutional Division. In two points of error, appellant contends: 1) he was denied effective assistance of counsel; and 2) the evidence was factually insufficient to support the jury's verdict. We affirm. While providing security at a local department store, Harris County Deputy Constable Shellene Keuling and Texas Department of Public Safety Trooper Janet Hernandez noticed appellant because of his clothes and suspicious behavior. They approached appellant and asked him for identification. Appellant became anxious, resisted questions and detainment, but finally produced identification. When appellant continued to resist the detainment, the officers handcuffed him. Keuling searched appellant and recovered from his wallet multiple driver's licenses and credit cards with different names and birth dates. Keuling then read appellant his Miranda warnings, and placed him in her patrol car. Keuling stayed with appellant and they talked for approximately three hours while other officers ran a check on the various names appellant provided. In his first point of error, appellant contends he was denied effective assistance of counsel. To prove ineffective assistance of counsel, appellant must show that 1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and 2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 688-92 (1984). Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). If appellant proves his counsel's representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693. Counsel's errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Id. at 691. Appellant must prove that counsel's errors, judged by the totality of the representation, not by isolated instances of error or by only a portion of trial, denied him a fair trial. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App. 1998). If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. See id. Appellant contends his trial counsel's failure to file a Rule 404(b) motion for notice of extraneous offenses caused damaging extraneous acts to be entered into evidence. TEX. R. EVID. 404(b). Specifically, appellant objects to Keuling's testimony as to his statements made to her concerning his legal status, why he had various names, and his future actions. Trial counsel's failure to file a request for notice of the State's intent to offer extraneous offenses and bad acts is not per se ineffective assistance of counsel. Rodriguez v. State, 981 S.W.2d 357, 359 (Tex.App.-San Antonio 1998, no pet.); see also Autry v. State, 27 S.W.3d 177, 182 (Tex.App.-San Antonio 2000, pet. ref'd) (explaining that trial counsel's failure to file pretrial motions generally does not result in ineffective assistance of counsel); Wills v. State, 867 S.W.2d 852, 856 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (same). We need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Strickland, 466 U.S. at 697; Hinson v State, 166 S.W.3d 331, 332 (Tex.App.-Waco 2005, pet. ref'd). Turning to the second prong of the Strickland test, we find appellant fails to demonstrate prejudice. Keuling testified appellant told her he possessed identification cards with various names on them because he had been deported in 2004, and he wanted to avoid detection in the United States. Keuling also testified appellant told her that, if deported, he intended to come back into the United States the same way he had this time, by hiring a coyote in Mexico to transport him. Appellant points to this isolated portion of testimony as proof of his trial counsel's ineffectiveness and argues, "surely this prejudiced the jury against the appellant." During trial, counsel objected to the testimony, and took Keuling on voir dire twice. The trial court determined that while the testimony revealed extraneous offense matters, the testimony was relevant to the element of intent to defraud or harm. Appellant does not argue that the extraneous offenses and bad acts were inadmissible, just that trial counsel failed to request notice. Moreover, appellant has not explained what he or his trial counsel would have done with such notice, or how the result would have been different. Thus, appellant fails the second prong of the Strickland test, and his first point of error is overruled. In his second point of error, appellant claims the evidence is factually insufficient to support the jury's verdict. In conducting a factual sufficiency review, we view the evidence in a neutral light and will set aside the verdict only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). A clearly wrong and unjust verdict occurs when the finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App. 2005). We must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the trier of fact reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). There are two ways in which the evidence may be insufficient. Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be evidence both supporting, and contrary to, the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met and the guilty verdict should not stand. Id. If there is evidence that establishes guilt beyond a reasonable doubt which the trier of fact believes, the judgment cannot be reversed on sufficiency of the evidence grounds. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Hernandez testified that supplying false information in a driver's license application would cause a license to be invalid. Hernandez further explained a person could obtain a new identity by altering just one letter in his name. Hernandez and Keuling testified appellant presented an International Driver's License ("IDL") as valid identification. The IDL listed appellant's name as Antho A. Petovic Sr., his birth date as March 7, 1963, and his place of birth as Italy. Keuling's testimony concerning appellant's desire to avoid detection, his illegal status, and his intent to return to the U.S. is evidence of an intent to defraud. Keuling also stated she and appellant talked for approximately three hours, and appellant supplied her with several different names he used, including Slobodan Petkovic. Appellant, on the other hand, testified Keuling "wasn't speaking the truth" when she testified he told her he used the various licenses to avoid detection. Appellant explained he changed his name legally in Croatia and was now "Antony Petkoli." However, no evidence was introduced to prove this assertion. Appellant also claimed he never gave the IDL to the officers because it was a novelty card meant as a joke, and it did not contain correct information. Instead, appellant insisted he gave the officers his Washington driver's license, and the officers were "not telling the truth" when both officers testified appellant offered the IDL as identification. Appellant argued the Washington license was valid, although he admitted he never resided at the address listed. Appellant testified his name on the Washington license was spelled correctly. However, when the State pointed out his name on the license was spelled differently than he had previously testified was the correct spelling, appellant changed his mind and stated it was not spelled correctly. Appellant also admitted he lived in Texas, not Washington, at the time of his arrest, and the Texas driver's license he had in his possession was invalid because it had been cancelled by the Department of Public Safety. Appellant confirmed he had never resided at the address printed on his Texas license. Appellant also admitted he had previously been convicted of two counts of theft, two counts of forgery, and bail jumping. Although he was convicted of at least one of these offenses under a different name, appellant argued he never used any other name. The State's evidence showed appellant had been convicted of forgery as Phillip Steven Kanner. Appellant insisted he never used that name, but that the police chose the name and "slapped it on me," simply because he possessed credit cards with that name on them. Appellant also insisted the different spellings of his name on the licenses and credit cards recovered by Keuling were mistakes made by the people who had created them. It is within the province of the trier of fact to resolve any conflicts and inconsistencies in the evidence. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). The trier of fact is the sole judge of the credibility of the witnesses and is free to believe or disbelieve all, part, or none of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A decision is not manifestly unjust merely because the trier of fact resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. A person commits the offense of tampering with a governmental record if the person possesses the governmental record with the intent to use it unlawfully. TEX. PENAL CODE ANN. § 37.10(a)(4) (Vernon Supp. 2006). Appellant and the State presented competing versions of the incident. Where conflicts in the testimonies exist, we presume the jury believed the State's witnesses and did not believe appellant. Sufficient evidence exists to permit a rational jury to find beyond a reasonable doubt that appellant tampered with a government record and intended to use it unlawfully, and the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Thus, appellant's second point of error is overruled. Having overruled appellant's two points of error, we affirm the judgment of the trial court.
The trial court did not permit Trooper Hernandez to testify about the basis for her reasonable suspicion or probable cause that led to appellant's detention and arrest. However, appellant does not challenge the propriety of his detention and arrest.
The various driver's licenses, names and birth dates, included the following: Florida, Anthony A. Petolli, 03-07-64; Washington, Anthony Petkoli, 02-28-52; International, Antho A. Petovic, Sr., 03-07-63; and Texas, Antony Petkoli, 02-28-52. The credit/debit cards with various names included the following: Washington Mutual, Anthony S. Petkovich; MasterCard (GM), Antho A. Petovic; American Express (MBNA), Anthony Petolli; VISA (Capital One), Anthony Petkovich; and MasterCard (Citi), Antho A. Petovic, Sr.
The trial court determined these statements to be res gestae.
Appellant's second point of error challenges, and the standard of review addresses, the factual insufficiency of the evidence. However, appellant makes a multifarious argument that the indictment was too vague and did not provide sufficient evidence concerning which government document was in issue and, thus, the evidence did not prove intent to defraud. An indictment is not evidence. Nevertheless, we construe the brief liberally and address appellant's factual insufficiency claim. TEX. R. APP. P. 38.9.
When conducting a search by computer, a one letter differentiation in a name would return a 'no record found,' indicating the person did not presently possess a driver's license.
Appellant testified he was born Slobodan Petkovich, on February 28, 1952, in Croatia.
Appellant admitted the name, birth date, and place of birth on the IDL were incorrect. However, appellant testified he sometimes added "Sr." to his name, after the birth of son in 1980.