Opinion
No. 05-05-01390-CR
Opinion Filed August 15, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-58413-QU.
Before Justices MOSELEY, BRIDGES, and RICHTER.
OPINION
Antoine Dwayne Smith appeals his jury conviction for aggravated robbery with a deadly weapon. In three issues, Smith asserts the evidence is factually insufficient to support the conviction, the trial court failed to correct the indictment and style of the case to reflect his true name, and he received ineffective assistance of counsel. We modify the trial court's judgment to reflect Smith's true name, direct the trial court similarly to modify the indictment and style of the case, and as modified, affirm.
Background
The robbery occurred around 8:30 a.m. on November 10, 2004. Melinda Southers was walking to the front door of the Ace Cash Express store she managed in Garland when she saw a black Oldsmobile pull into the parking lot. Moments later, Southers was approached by a black male with his shirt pulled over his nose. He was waving "a piece of paper" and asked Southers to cash a check for him. When she asked him to go back to his car because the store would not open for another thirty minutes, he displayed a small, dark gray handgun, put it up against her back, and told her to go into the store and not "do anything stupid" or he would "kill" her. Afraid and threatened, Southers complied. Once in the store, Southers was ordered to open the safe. As the robber handed Southers a pillow case and demanded "all the bills, no change," he dropped the piece of paper he had waved at her when he first approached her. Not noticing, Smith stood by the safe as Southers placed stacks of bills in the pillow case. When Southers had emptied the safe of bills, Smith ordered Southers into the restroom and told her to stay there until she had "count[ed] to a hundred." Southers again complied and when she exited the restroom, the robber was gone and she was able to call the police. Smith was subsequently charged with the offense after Southers identified him as the robber from a six-picture line-up. At trial, Southers testified she was able to get a good look of the robber while she and he waited for the safe to open. Southers explained the safe was on a time-delay and took about fifteen to twenty minutes to open. Although the robber had his shirt up to his nose, Southers could see "his eyes, bridge of his nose, his hair, ears, and part of his jawline." Southers testified he appeared confident and "meant business." Southers further testified she "still remembers [the robber's face] and still dreams about it," and she had no doubt the robber was Smith. According to Southers, the safe contained $25,000 in bills and "$2,000 and some" in change the day of the robbery. She knew the amounts because she had closed the store the night before and counted the money in the safe. Dallas police officer Tommy Railey testified he responded to the scene and investigated the robbery. Railey found Southers "nervous and shaken up," but able to give a good description of the robber and his car. He subsequently put together a six-picture line-up based on Southers's description and the paper the robber dropped as he handed Southers the bag for the money-an insurance card with Smith's and Smith's wife's name on it. Conversations with the insurance company and Smith's wife, confirmed the card was Smith's and the car insured was the same Oldsmobile Southers saw the robber driving. Railey testified Southers identified Smith immediately from the line-up. About four days later, Railey learned that a fingerprint had been lifted from the front door following the robbery but it belonged to an individual named Anthony Hackett, not Smith. Railey testified he did not investigate Hackett or show Hackett's picture to Southers. Railey explained he did not give much import to Hackett's fingerprint because it had been removed from a high-trafficked area of the store-the front door, Hackett did not match Souther's description of the robber, nothing else pointed to Hackett, and Southers had already identified Smith. Dallas police officer Matthew Smith, the arresting officer, testified he conducted surveillance on Smith's apartment prior to Smith's arrest and noticed the apartment had new furniture and a new "fifty-plus inch" big screen television set. The officer also learned Smith had purchased a used but "newer model" Cadillac Seville the day of the robbery. According to the officer, Smith arrived home in the Cadillac the day of his arrest. Smith was arrested without incident, but was found carrying a small handgun resembling the one used in the robbery. Testifying in his defense, Smith denied any involvement in the robbery. He testified he was with his wife the morning of the robbery and that a known drug dealer from the neighborhood, "Lucky," had borrowed his car. When Lucky returned the car later in the day, it was "torn-up." Lucky gave him $1,000 to cover the repair of the car and also let him borrow $4,000. Smith testified he used some of the money to buy the furniture and new television set for his apartment. He also made a down payment on the Cadillac, which he purchased to replace the Oldsmobile. Smith testified that both he and his wife worked and, having been married five years and not having any children, they had managed to save some money. Despite the savings, the Cadillac was later repossessed because Smith could not make payments. Smith theorized that Lucky and Southers had "set him up" and that Southers had been able to identify him because Lucky had shown her Smith's wedding pictures which were kept in the glove compartment of the Oldsmobile. Smith's testimony was corroborated in large part by his wife, who also testified that she had made a down payment on a used Ford Expedition around the same time Smith purchased the Cadillac but it, too, was later repossessed. According to Smith's wife, she, her sister, her mother, and Smith's parents "pooled" together their funds to bond Smith out of jail after he was arrested. They also "pooled" their money to hire an attorney for Smith, but were unable to continue to afford him and the trial court had to appoint counsel for Smith. Unpersuaded by Smith's and his wife's testimony, the jury found Smith guilty and assessed punishment at forty years confinement.Factual Sufficiency of Evidence
In his first issue, Smith argues the evidence is factually insufficient to support his conviction. In arguing this issue, Smith relies on (1) the alibi testimony of his wife, (2) his and his wife's testimony concerning their finances, and (3) Railey's testimony that he gave no import to Hackett's fingerprints being found at the scene following the robbery. Smith argues the evidence suggests Lucky or Hackett committed the robbery and maintains that if he had robbed the Ace store of $25,000 as alleged, he "surely" would have been able to keep at least one of the cars purchased shortly after the store was robbed and would have been able to afford retained counsel. We review a challenge to the factual sufficiency of the evidence to support a conviction by viewing all the evidence under a neutral light and determining whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we bear in mind that the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). As such, we may substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), petition for cert. filed (U.S. March 13, 2007) (No. 06-11318). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Id. Based on the indictment in this case, to establish Smith's guilt, the State had to prove beyond a reasonable doubt that Smith, in the course of robbing the Ace store and with the intent to obtain or maintain control of the $25,000, used or exhibited a deadly weapon and intentionally and knowingly threatened or placed Southers in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. §§ 29.02(a), 29.03(a) (Vernon 2003). The State could prove identity through direct or circumstantial evidence and inferences. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); Hardesty v. State, 656 S.W.2d 73, 77 (Tex.Crim.App. 1983); Roberson v. State, 16 S.W.3d 156, 157 (Tex.App.-Austin 2000, pet. ref'd). Viewing the evidence here under the appropriate standard, we conclude the evidence was factually sufficient to support Smith's conviction. From (1) Souther's testimony that the store was robbed of $25,000, the robber displayed a gun and threatened to kill her, she felt threatened and afraid, she observed the robber's face for an extended period of time, remembers it well and dreams about it, and she was certain Smith was the robber, (2) testimony that the robber left an insurance card behind bearing the name of Smith and his wife, and (3) testimony that Smith was found to have newly furnished his apartment and purchased two new cars within days of the robbery, the jury could have found beyond a reasonable doubt that Smith committed the offense. See Tex. Pen. Code Ann. §§ 29.02(a), 29.03(a). Although Smith and his wife testified that Smith was at home when the robbery occurred, that Lucky had given Smith $5,000, and that they did not have enough money to pay for their cars or retained counsel, the jury, as the fact-finder, was free to disbelieve this testimony and believe Southers's. See Bustamante v. State, 106 S.W.3d 738, 741 (Tex.Crim.App. 2003) (within jury's discretion to disbelieve self-serving testimony). Moreover, although the fingerprint lifted did not link Smith to the offense, no forensic evidence was necessary as Southers unequivocally identified Smith as the robber. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971) (testimony of eyewitness alone sufficient to support jury's verdict); Johnson v. State, 176 S.W.3d 74, 77 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (alibi testimony and lack of physical evidence linking appellant to robbery did not render evidence factually insufficient to support conviction where victim identified appellant as robber). We resolve Smith's first issue against him.Correction of Name
Smith's second issue stems from the misspelling of his first name in the indictment-"A-N-T-O-N-I-E" instead of "A-N-T-O-I-N-E." Although Smith testified at his arraignment that his name was misspelled in the indictment, the case proceeded with the misspelling as neither he nor his counsel asked the trial court to correct the indictment and the court did not do so sua sponte. Noting that article 26.08 of the Texas Code of Criminal Procedure mandates a trial court to correct the indictment and style of a case to reflect a defendant's true name when informed of a mistake, see Tex. Code Crim. Proc. Ann. art. 26.08 (Vernon 1989), Smith argues in his second issue that the court's failure to correct the spelling of his name is error requiring reversal of his conviction and remand for a new trial. In the alternative, Smith requests this Court reform all documents to reflect the proper spelling of his name. The misspelling of a defendant's name is a defect of form. Jones v. State, 504 S.W.2d 442, 444 (Tex.Crim.App. 1974). Because this defect can easily be corrected at the election of the accused, a trial court's failure to correct the misspelling is reversible error only upon a showing the defendant's substantial rights have been affected. See Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon 1989); Jones, 504 S.W.2d at 444. Here, no such showing exists. As the State points out, although the indictment and judgment bear the misspelled name, several other court documents in the record bear the correct spelling and the record reflects that at trial, Smith was referred to as "Antoine." Moreover, Smith did not, and does not, complain he is not the same individual named in the indictment. See Jones, 504 S.W.2d at 444 (purpose of naming accused in charging instrument is for his identification). In fact, the record reflects he answered to the indictment and began preparing his defense long before bringing to the court's attention the misspelling of his name. Though the trial court's failure to correct the spelling of Smith's name is error, it is not reversible error. Accordingly, we resolve Smith's second issue in his favor only to the extent that we modify the judgment to reflect the correct spelling of his first name and also direct the trial court to correct the spelling in the indictment and style of the case. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) (recognizing this Court has authority to correct clerical error contained in judgment).Effectiveness of Counsel
In his third issue, Smith asserts he received ineffective assistance of counsel at the guilt-innocence phase of trial. Specifically, Smith alleges counsel was deficient in:*failing to obtain a business records affidavit from the custodian of a pawn shop so he could overcome a hearsay objection to a pawn shop receipt he sought to introduce into evidence showing Smith purchased a gun resembling the one Southers identified as the one exhibited at the robbery after the robbery;
*failing to "thoroughly" investigate the existence of Lucky;
*failing to cross-examine Southers on whether Smith could have exited the store without her assistance since the doors locked automatically after she and Smith entered the store;
*failing to prepare Smith's wife for cross-examination so she would not "volunteer" that Smith had been previously arrested for an unrelated offense; and
*failing to request a limiting instruction after Smith's wife testified Smith had been previously arrested for an unrelated offense.Smith maintains that, but for these deficiencies, a reasonable probability exists he would not have been convicted. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of evidence both deficient performance and prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish deficient performance, the appellant must show counsel's actions did not result from strategic design and fell below "prevailing professional norms." See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000); Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). To establish prejudice, the appellant must show a reasonable probability the trial result's would have been different but for counsel's deficient performance. Cardenas, 30 S.W.3d at 391. In determining whether counsel provided effective assistance, we look to the totality of the representation and strongly presume counsel's competence. Thompson, 9 S.W.3d at 813 (Tex.Crim.App. 1985). We do not judge counsel's trial decisions in hindsight and will find counsel ineffective only if the claim is firmly founded in the record. Id. Without the required showing of deficient performance or sufficient prejudice, the appellant cannot overcome the presumption of reasonable counsel. Id. Unless the challenged conduct is so outrageous that no competent attorney would have engaged in it, an appellant generally cannot overcome on direct appeal the presumption of reasonable counsel without a motion for new trial asserting an ineffective assistance of counsel claim and a hearing on that motion showing counsel's reasons for his actions or inactions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005); Kemp v. State, 892 S.W.2d 112, 115 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Here, counsel's alleged inactions are "not so outrageous" and, although Smith filed a motion for new trial, nothing in the record shows why counsel proceeded in the manner that he did. Without counsel's explanations or a finding that counsel's conduct was outrageous, a finding that counsel was deficient would be nothing more than speculation. See, e.g., Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003) (record insufficient to support ineffective assistance of counsel claim where record silent regarding reason counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses); Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App. 2001) (noting on direct appeal that Varelas's claim that counsel was ineffective in failing to request certain instructions in connection with extraneous acts admitted during guilt-innocence failed because "bare record did not reveal nuances of trial strategy;" however, on application for writ of habeas corpus, with record of counsel's reasons for omission, claim successful); Randon v. State, 178 S.W.3d 95, 102-03 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (record insufficient to support ineffective assistance of counsel claim where record silent regarding reasons counsel failed to conduct further investigation). Additionally, although Smith claims he was prejudiced by counsel's actions, his whole argument in this regard is his bare assertion that "there is a reasonable probability that but for counsel's error, the result of the proceeding would have been different." Smith does not provide any argument or authority in support of his claim of prejudice, yet it is his burden to prove prejudice. See, e.g., Cardenas, 30 S.W.3d at 391 (overruling claim that counsel ineffective for failing to object on basis of Vienna Convention where appellant failed to allege or develop any argument as to how outcome of trial would have been different if counsel had timely objected); Hollis v. State, 219 S.W.3d 446, 470-71 (Tex.App.-Austin 2007, no pet.) (overruling claim that counsel ineffective for failing to cross-examine witness further where appellant failed to show that even if counsel had cross-examined witness further, result of trial would have been different); Jones v. State, 170 S.W.3d 772, 776 (Tex.App.-Waco 2005, pet. ref'd) (overruling claim that counsel ineffective for failing to object to jury instruction where appellant failed to offer in his brief any argument that counsel's failure prejudiced his defense). We resolve Smith's third issue against him. As modified, we affirm the trial court's judgment.