Opinion
NO. 01-16-00540-CR
07-13-2017
ANTONIO BRAVO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court Harris County, Texas
Trial Court Case No. 1512862
MEMORANDUM OPINION
Antonio Bravo was convicted of unauthorized use of vehicle, sentenced to ten years' confinement, and fined $2,000. In two issues, Bravo argues that (1) there is insufficient evidence to support his conviction because there is no evidence that he operated the complainant's car and (2) he received ineffective assistance of counsel because his trial counsel did not request a defensive instruction on mistake of fact. We affirm.
Background
The Rubio family owns a green 2000 Honda Civic. One evening, Irma Rubio returned from work and parked the car on the street in front of her apartment. The next morning, Irma, her husband, Abel Sr., and their son, Abel Jr., noticed that the car was gone. They made sure that the car had not been towed and then reported it stolen to the police.
Later that afternoon, after Abel Jr. had returned from school, Irma and Abel Jr. drove around looking for the car, suspecting that the car might have been stolen, stripped, and abandoned somewhere nearby. After about thirty minutes of driving, Irma and Abel Jr. spotted someone parking the car in a shopping center parking lot. They pulled into the parking lot and watched as a man—later identified as Bravo—exited from the driver's side of the car and walked into a restaurant in the shopping center. Bravo was the only person they saw exit the car.
Abel Jr. testified that Bravo looked like the man who had parked the car, except that Bravo was clean-shaven while the man in the car had a beard. Irma positively identified Bravo as the man who she saw exit the car and walk into the restaurant.
Abel Jr. called Abel Sr. and then tried to call the police, but his phone died, so he ran to a nearby police station, where he reported what he and Irma had seen. The police station dispatched an officer to the shopping center, and Abel Jr. walked back and watched the car with Irma while the two of them waited for Abel Sr. and the police to arrive.
Abel Sr. arrived just as Bravo was leaving the restaurant. Abel Sr. testified that he walked up to Bravo and told him, "Hey, buddy. You have a very nice looking car." Bravo initially responded, "I just happened to buy it for $500" but then said, "If the car belongs to you, let me get my stuff out . . . and I will leave."
Bravo then grabbed several items from inside the car and began walking away. Then Abel Sr. told Bravo that the police were coming, and Bravo began to run.
Houston Police Department Officer M. Shaikh arrived at the scene. Abel Sr. flagged down Shaikh and pointed to Bravo, exclaiming that he was the one who had stolen the Rubios' car. Shaikh looked in the direction that Abel Sr. was pointing and saw Bravo running. Shaikh ran after Bravo, found him hiding at a nearby apartment complex, and arrested him.
While Shaikh was arresting Bravo, Shaikh's partner, Officer J. Morales, arrived at the shopping center, took statements from the Rubios, and inspected the car, which he noticed had been hot-wired.
Bravo was charged with unauthorized use of a vehicle, enhanced by two prior convictions for the same offense. The jury found him guilty, and the trial court sentenced him to ten years' confinement and fined him $2,000. Bravo appeals.
Sufficiency of Evidence
We begin by considering Bravo's second issue, in which he contends that there is insufficient evidence to support his conviction.
We review Bravo's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318-20, 99 S. Ct. 2781, 2788-89 (1979). See Brooks v. State, 323 S.W.3d 893, 894-913 (Tex. Crim. App. 2010). Under this standard, "a reviewing court views all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Cantu v. State, 395 S.W.3d 202, 207 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd).
We consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence in making our determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). "For the evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt." Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Instead, we determine "only whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict." Id.
We defer to the factfinder to resolve any 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, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. We presume that the factfinder resolved any conflicts in the evidence in favor of the verdict and defer to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.
A person is guilty of unauthorized use of a vehicle "if he intentionally or knowingly operates another's . . . motor-propelled vehicle without the effective consent of the owner." TEX. PENAL CODE § 31.07(a). Bravo argues that there is insufficient evidence that he operated the Rubios' car because none of the witnesses testified that they actually saw Bravo driving the car. We disagree.
Evidence that a defendant exited the driver's side of a vehicle is sufficient to prove intentional or knowing operation of that vehicle. See Jackson v. State, 645 S.W.2d 303, 306 (Tex. Crim. App. 1983); Duenez v. State, 735 S.W.2d 563, 566 (Tex. App.—Houston [1st Dist.] 1987, pet. ref'd). And evidence that the driver fled from the stopped vehicle supports a reasonable inference of unauthorized use. See Middlebrook v. State, 803 S.W.2d 355, 360 (Tex. App.—Fort Worth 1990, pet. ref'd).
Abel Jr. testified repeatedly that he saw someone parking (i.e., operating) the car and that he then saw Bravo exit from the driver's side. Irma likewise testified that she saw Bravo exit from the driver's side of the car right after it had parked. And numerous witnesses (Abel Jr., Abel Sr., Irma, and Officer Shaikh) testified that Bravo attempted to flee when he realized the police had arrived.
The State has no obligation to disprove every plausible theory to account for the evidence that Bravo appeared outside of the stolen car just moments after the car was parked. See Wise, 364 S.W.3d at 903. We conclude that, when viewed in the light most favorable to the verdict, the evidence was legally sufficient to support the jury's conclusion that Bravo intentionally or knowingly drove the Rubios' car without the effective consent of Abel Sr. (the registered owner) and, therefore, was guilty of unauthorized use of a vehicle.
We overrule Bravo's second issue.
Ineffective Assistance of Counsel
We now consider Bravo's first issue, in which he contends that he received ineffective assistance of counsel. Bravo argues that trial counsel was ineffective because he failed to request a defensive instruction on mistake of fact based on Abel Sr.'s testimony that Bravo told him that he purchased the car for $500. See TEX. PENAL CODE § 8.02(a) ("It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.").
To prevail on a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-90, 104 S. Ct. 2052, 2064-66 (1984). Under the first prong, "the defendant must show deficient performance—that the attorney's error was 'so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Weaver v. Massachusetts, No. 16-240, 2017 WL 2674153, at *10 (U.S. June 22, 2017) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). Under the second prong, "the defendant must show that the attorney's error 'prejudiced the defense.'" Id.
In reviewing a claim for ineffective assistance of counsel, we are "highly deferential" to trial counsel. Taylor v. State, 461 S.W.3d 223, 228 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). We indulge a "strong presumption" that trial counsel's performance "fell within the wide range of reasonable professional assistance." Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013). To prove that counsel's performance was deficient, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
"Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness." Id. And "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Thus, if the record does not contain affirmative evidence of counsel's reasoning or strategy, we normally presume that counsel's performance was not deficient. Blackwell, 193 S.W.3d at 21. "In rare cases, however, the record can be sufficient to prove that counsel's performance was deficient, despite the absence of affirmative evidence of counsel's reasoning or strategy." Id.
Bravo's trial counsel pursued a viable defensive strategy that emphasized the fact that no witness had actually seen Bravo driving the car. The record is silent on why trial counsel chose this strategy and not one that highlighted Bravo's statement to Abel Sr. that he had purchased the car—a statement that Bravo immediately contradicted with his words (telling Abel Sr. he could take the car if it was his) and his actions (attempting to flee from the police). Given that the record is silent on trial strategy, we presume that counsel pursued a sound trial strategy, such as choosing between two inconsistent defenses and pursuing the one that is not inconsistent with the evidence.
Because the record is silent as to why trial counsel did not request a mistake-of-fact instruction, we hold that Bravo has failed to rebut the "strong presumption" that counsel's performance "fell within the wide range of reasonable professional assistance." LaHood, 401 S.W.3d at 50. Accordingly, we overrule Bravo's first issue.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Justices Higley, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).