No. 05-05-00932-CR
Opinion Filed March 6, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F04-72600-TH .
Before Justices WHITTINGTON, O'NEILL, and FRANCIS. Opinion By Justice O'NEILL.
MICHAEL J. O'NEILL, Justice.
Appellant Etheriel Lunzell Clark was indicted for aggravated robbery, but convicted of the lesser-included offense of robbery. The trial court assessed punishment, enhanced by two prior convictions, at life imprisonment. In three issues, appellant claims (1) the evidence is factually insufficient to identify him as a party to the robbery, (2) the trial court erred in refusing to allow him to testify free from impeachment with prior convictions, and (3) he received ineffective assistance of counsel. We affirm the trial court's judgment.
Background
On April 12, 2004, around 9:20 p.m., Edgar Cervantes was washing his truck at a self-service car wash on Buckner Avenue. A man approached him and asked if he had any quarters, but Cervantes said he did not. When he turned around, another man was pointing a gun at him and asked for his wallet. Cervantes handed his wallet to appellant, who also took his keys from the truck, locked it, and ran away. Cervantes then saw a Chevrolet Beretta speed away from the car wash. Cervantes called the police and provided a statement. Approximately two weeks later, Cervantes saw an identical Chevrolet Beretta at the same car wash and noted the license plate number. The police traced the car to Lakisha Small. Upon locating her, the police informed her that her car could have been involved in a crime. When asked if anyone else ever used her car, she stated that her brother and appellant, who was her live-in boyfriend, sometimes used the car on her days off from work. Based on this information, the police located appellant and asked him for a photograph to use in a photo array. Cervantes identified appellant from the photo array. Appellant was arrested and charged with aggravated robbery, but convicted of the lesser-included offense of robbery. This appeal followed. Sufficiency of the Evidence
In his first issue, appellant argues the evidence is factually insufficient to identify him as a party to the robbery. Specifically, he claims the evidence is factually insufficient because he did not have access to the Chevrolet Beretta on the night in question, and his brother provided alibi testimony. The State responds Cervantes's identification testimony alone is sufficient to uphold the conviction. Further, the jury heard contrary evidence from the alibi witnesses, which the jury was free to disbelieve. A person is guilty of robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he does either of the following: (1) he intentionally, knowingly, or recklessly causes bodily injury to another; or (2) he intentionally or knowingly threatens to place another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02(a) (Vernon 2003). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. Id. § 31.03(a) (Vernon Supp. 2006). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, the court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determinations). After reviewing the record, we conclude the evidence is factually sufficient to support appellant's robbery conviction. Cervantes stated at trial that during the robbery appellant stepped into the lighted wash bay, which provided him a good view of appellant. Cervantes also testified he identified appellant from a photographic lineup as the man who asked him for change at the car wash and took his truck keys. Detective Susan Ellis testified his identification was "very positive" and without hesitation. Cervantes further identified appellant in court and stated his identification was based on his memory of appellant from the night of the robbery and not from photographs. This testimony alone is sufficient to support appellant's conviction. See e.g., Harmon v. State, 167 S.W.3d 610, 614 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (holding evidence legally and factually sufficient to support aggravated robbery conviction based on victim's testimony and positive identification from photographic lineup); Wimbrey v. State, 106 S.W.3d 190, 191-93 (Tex.App.-Fort Worth 2003, pet. ref'd) (holding evidence was factually sufficient to support defendant's conviction for aggravated robbery when two witnesses separately identified defendant in photographic lineup two months after robbery, and both identified defendant at trial as the man who robbed the store). Despite Cervantes's identification testimony, appellant asserts the evidence is factually insufficient because he did not have access to the car, and he was at a nightclub during the time of the offense. The jury first heard testimony from Lakisha Small, appellant's wife, that appellant did not have access to the car because she was working the night of April 12, 2004 from 3 p.m. to 11 p.m, and the car was parked at her place of employment. Later, she admitted appellant had access to the car; however, she claimed she was with him during this time. Tracy Dotson, an investigator for the district attorney, interviewed Small shortly after the offense. He testified Small told him she was not working on April 12, and appellant was allowed to use the car whenever she was not working. He further testified Small's apartment was approximately five miles from the site of the offense. The jury also heard testimony from appellant's brother Luearl Evans. He claimed he met appellant at the Struggling Lady nightclub around 9:45 or 10 p.m. on April 12. Although appellant attempts to use this testimony to support an alibi, he overlooks other testimony establishing he could have still committed the crime. Cervantes testified the men approached him around 9:20 p.m. Dotson testified the car wash was approximately ten minutes from the club. Based on this evidence, the jury could determine appellant committed the offense and still had time to arrive at the club by 9:45 p.m. It was the jury's function to resolve any conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). The jury was free to accept or reject any and all of the evidence presented by either side. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewing the evidence under the proper standard, we conclude it is factually sufficient to support appellant's robbery conviction. See Watson, 204 S.W.3d at 415. We overrule appellant's first issue. Testifying Free from Impeachment by Prior Convictions
In his second issue, appellant asserts the trial court abused its discretion when it refused to allow him to testify free from impeachment with prior convictions. We need not address the merits of this point because the defendant never testified. Caballero v. State, 919 S.W.2d 919, 923 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd); see also Jackson v. State, 992 S.W.2d 469, 479 (Tex.Crim.App. 1999) (relying on reasoning in Luce v. U.S., 469 U.S. 38, 43 (1984)). To preserve error on a trial court's ruling allowing the State to impeach a defendant with prior convictions, the defendant must have actually testified. Caballero, 919 S.W.2d at 923. It is unlikely that a reviewing court can weigh the probative value of the proffered testimony against its prejudicial effect without a factual record of the defendant's testimony. Id. Moreover, the alleged harm would be speculative because the trial court could change the previous ruling and prohibit the impeachment, or the prosecutor could decide not to use the prior conviction. Id. Because appellant failed to testify and preserve his argument for review, his second issue is overruled. Ineffective Assistance of Counsel
In his third issue, appellant contends he received ineffective assistance of counsel because his attorney failed to object to a juror remaining on the panel after the State's attorney loaned her two dollars to get out of the parking garage. He claims this interaction resulted in a "natural inclination" for the juror to vote in favor of the prosecution. To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Further, the record must be sufficiently developed to overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Generally, a silent record providing no explanation for counsel's actions or trial strategy will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). After being stranded for over an hour and unable to get out of the parking garage, the juror approached the prosecutor. Both parties were hesitant to talk with each other. However, rather than leave the woman in the parking garage, the prosecutor loaned her two dollars to exit. The next morning, the prosecutor immediately made both the trial court and defense counsel aware of the situation. Defense counsel agreed that "because the stakes are so high, it probably should be on the record." The juror then stated on the record the prosecutor's actions would not impact her ability to reach a verdict in any way. Defense counsel had no questions for the juror and did not object to her remaining on the panel. Appellant claims his failure to object was ineffective assistance of counsel. Although appellant filed a motion for new trial, it was nothing more than a form motion arguing against the sufficiency of the evidence and made no reference to the interaction between the juror and prosecutor. There was no hearing on the motion or any evidence presented of defense counsel's possible strategies for not objecting to the juror remaining on the panel. Thus, there is no evidence rebutting the presumption that counsel acted pursuant to sound trial strategy. Without being afforded the opportunity to explain his strategies, we refuse to denounce counsel as ineffective or his performance as falling below an objective standard of reasonableness. See Bone v. State, 77 S.W.3d 828, 836 (Tex. 2002). Because he has failed to establish the first Strickland prong, appellant's third issue is overruled. Having overruled all of appellant's issues, we affirm the trial court's judgment.