Opinion
No. 05-01-01726-CR.
Opinion issued April 17, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-51842-TU. AFFIRMED.
OPINION
Victor Tyrone Anderson appeals his conviction of aggravated assault with a deadly weapon. The jury assessed punishment at nine years' imprisonment. In two points, Anderson raises factual insufficiency and ineffective assistance of counsel arguments. We affirm. Facts On the morning of April 17, 2001, Doris Haynes stood alone near her usual bus stop, waiting for the bus to take her to work. Within minutes, a man walked towards her and looked up and down the street. Haynes noticed he was not someone who had taken her bus before. As the man walked to the bus stop, Haynes looked away. When she raised her head to look for the bus, he was in front of her with a gun stating, "Give me your purse." She initially struggled with him, but, fearful for her life, she ultimately turned it loose. Her purse contained credit cards, personal possessions, and over $50 in cash. After the man fled, Haynes gave a description of her attacker to Police Officer Elvis Benson, who then forwarded the case to Police Detective Johnny McDaniel for investigation. By the time Haynes was robbed, Anderson had already been a suspect in another aggravated robbery offense. In that incident, Pendleton Rogers, Anderson's mother's boyfriend, reported to police that Anderson attacked him with a tire iron and stole his wallet. McDaniel developed Anderson as a suspect in the Haynes case based on the temporal and spatial proximity between the two aggravated offenses. One week after Haynes was robbed, McDaniel showed Haynes a photograph array, and she identified Anderson as her assailant. Based on outstanding City charges and the offense against Haynes, McDaniel went to Anderson's home to arrest him. As a female voice inside the home told police that Anderson was not there, officers found Anderson exiting a window on the opposite side of the house and arrested him. At his trial for the aggravated robbery against Haynes, Haynes identified Anderson as her attacker. However, Anderson and his grandmother testified he neither owned nor possessed a gun, and he was at home at the time of the offense. The jury found Anderson guilty and assessed punishment at nine years' confinement. Factual Insufficiency In his first point, Anderson contends the only evidence linking him to the crime is Haynes's identification of him as her attacker, and that evidence is factually insufficient to support his conviction. We disagree. In reviewing factual sufficiency, we look at all evidence in a neutral light and reverse only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Thompson v. State, 93 S.W.3d 16, 21 (Tex.Crim.App. 2001). In conducting such a review, we begin with the presumption that the evidence is legally sufficient. See id. Next, we consider all evidence in the record, comparing the evidence that tends to prove the existence of the elemental fact in dispute to the evidence that tends to disprove it. Id. While this Court has some authority to disregard evidence that supports the verdict, we must be appropriately deferential so as to avoid substituting our own judgment for that of the fact finder. See id. It is not proper for this Court to reweigh the evidence or substitute our judgment because we conclude another result is more reasonable. See Mizell v. State, 70 S.W.3d 156, 161 (Tex.App.-San Antonio 2001, pet. granted). Instead, we must defer to the jury's findings, and we may not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the witnesses. See Lee v. State, 29 S.W.3d 570, 574 (Tex.App.-Dallas 2000, no pet.). The jury views the demeanor of the witnesses and can choose to believe all, some, or none of the testimony. See Sandoval v. State, 54 S.W.3d 396, 399 (Tex.App.-Eastland 2001, pet. ref'd). Here, identity is the elemental fact in dispute. To support his argument, Anderson relies primarily on alibi evidence. Anderson and his grandmother testified that at the time of the offense, he was at home either sleeping or fixing breakfast. Anderson's grandmother did not allow him to own a gun, and he did not own or possess one. At the time of the offense, Anderson had a gold tooth, a tongue ring, and stammered speech, yet Haynes did not notice these attributes in her description to police. Haynes testified she would have been able to see a gold tooth if her attacker had been wearing one, but she did not see one. Thus, Anderson argues Haynes misidentified him as her assailant. Conversely, the jury also heard evidence that the aggravated robbery against Haynes occurred near Anderson's home, and Anderson had been believed to be involved in a similar offense, albeit with a tire iron instead of a gun, just two weeks earlier. Haynes unequivocally selected Anderson as her attacker before and during trial, and the jury could have reasonably believed Haynes got a good look at her assailant at the time of the robbery, considering it was daylight and he stood directly in front of her face. Haynes did not see her assailant's teeth or see inside his mouth when he spoke. Because Anderson stammered only sometimes, it would be a reasonable conclusion that he did not stammer at the time of the robbery when he uttered the short phrase, "Give me your purse." Moreover, the jury could have reasonably believed Anderson was exiting his window to escape arrest for the aggravated robbery against Haynes rather than to escape arrest for outstanding City warrants. The jury was free to accept Haynes's identification testimony and reject Anderson's and his grandmother's alibi testimony. See Garza v. State, 82 S.W.3d 791, 793 (Tex.App.-Corpus Christi 2002, no pet.) (stating that jury may believe or disbelieve testimony of any witness, including alibi witness). Reviewing all evidence in a neutral light, the evidence supporting the identity issue was not so obviously weak as to render the conviction clearly wrong and manifestly unjust. Moreover, when taken alone, Haynes's identification of Anderson as her attacker was sufficient evidence to prove Anderson's guilt, and evidence tending to disprove the identity issue was not so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. See Vasquez, 67 S.W.3d at 236; Moore v. State, 446 S.W.2d 877, 878 (Tex.Crim.App. 1969) (holding that store employee's positive identification of appellant as thief was by itself ample evidence to support conviction); Garza, 82 S.W.3d at 793; Sandoval, 54 S.W.3d at 398-99. We overrule the first point. Ineffective Assistance of Counsel In his second point, Anderson contends he received ineffective assistance of counsel from his attorney, Kenneth Onyenah, because he failed to make timely objections and he elicited extraneous offense and prejudicial testimony from State's witnesses on cross-examination and from defense witnesses on direct examination. According to Anderson, had Onyenah objected to or refrained from eliciting prejudicial evidence of the aggravated assault against Rogers, Anderson's outstanding City charges, and the use of Haynes's stolen credit cards, the result of the proceedings would have been different because there was a reasonable probability the jury would have found Anderson not guilty in view of his alibi evidence. We disagree. To prevail on an ineffective assistance of counsel claim, Anderson must show that trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions. See Aldrich v. State, 53 S.W.3d 460, 469 (Tex.App.-Dallas 2001, pet. granted) (citing Strickland v. Washington, 466 U.S. 668 (1984), and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986)). Assuming, without deciding, that Anderson has shown Onyenah's representation fell below the reasonable standard, Anderson has nevertheless failed to prove prejudice under the second Strickland prong. As stated in the resolution of the first point, Haynes's identification of Anderson before and during trial was sufficient to support the verdict. See Garza, 82 S.W.3d at 793 (stating that whatever testimony jury believes, positive identification of defendant as person who committed offense is sufficient to support conviction). That identification precludes the reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Thus, Anderson has not shown he received ineffective assistance of counsel. We overrule the second point. Conclusion We hold the evidence concerning identity was factually sufficient to support Anderson's conviction and further hold that he has not shown he received ineffective assistance of counsel. We affirm the trial court's judgment.
Later, at Anderson's trial for the aggravated robbery against Haynes, Rogers would recant his earlier report to police, stating there was no aggravated robbery. Instead, he and Anderson had merely engaged in a fight, and Anderson did not rob him. The State, however, elicited cross- examination testimony from Rogers that he was still involved with Anderson's mother, thereby implying that Rogers was truthful in his initial report to police shortly after the incident between Rogers and Anderson, but not truthful in his subsequent trial testimony.