No. 4-05-00467-CR
Delivered and Filed: September 6, 2006. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-4416A, Honorable Juanita Vasquez-Gardner, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
Opinion by: ALMA L. LÓPEZ, Chief Justice.
Christopher Gonzalez was convicted by a jury of aggravated robbery and aggravated assault with a deadly weapon. On appeal, Gonzalez asserts: (1) the evidence was factually insufficient to support his convictions; (2) trial counsel rendered ineffective assistance of counsel; and (3) the trial court abused its discretion in failing to hear and rule on Gonzalez's pro se motion to dismiss appointed trial counsel. We affirm the trial court's judgment.
Background
The State tried Gonzalez as a party to the offenses for which he was convicted. The principal actor was Joshua Ramon. Diana Macias drove to the Money Box to cash her paycheck. After she cashed her check, Macias was returning to her truck when a man, later identified as Ramon, came from the back of the truck and asked her for the time. As Macias looked down at her watch, Ramon grabbed her by the neck and pulled her down, trying to stab her with a knife. Macias let go of her purse, and Ramon ran away with her purse. Two men started to chase Ramon, but he waved them off. One of the men jumped into a car and told Macias to get his keys from his truck and close his door. The men appeared to be chasing another compact car that Macias identified as a Honda. Sometime later, two police cars drove by with a man in the back of each car. Macias identified Ramon as the man who robbed her. Macias went to the police station and gave a written statement. In her statements, Macias stated that Ramon was wearing a blue and white striped shirt. Macias identified the sunglasses Ramon was wearing and the knife he used which had been recovered from the car used by Ramon and Gonzalez. Gustavo Menchaca worked at the tire shop next to the Money Box. When he arrived for work, he noticed a green car parked on the side of the shop. Menchaca later stated that the car was positioned so that it could drive around behind the building to a second exit. The green car had a red dragon on the door. A man, who was later identified as Gonzalez, was standing beside the car smoking. Another man, who was later identified as Ramon, came out of the Money Box and walked up to Gonzalez. Ramon was wearing a striped shirt, a cap and glasses. The two men said something to each other and then Ramon ran back toward the parking lot. Menchaca heard a lady scream, looked in his rear view mirror, and "saw like some legs kind of like running around." Menchaca then saw Ramon walking away holding a purse. Menchaca approached Ramon who pulled out a knife and waved it at him. Menchaca saw Ramon get into the passenger seat of the green car. Menchaca saw the green car exit the parking lot quickly, running a red light and running off the road. Menchaca's cousin pulled into the parking lot at the same time. Menchaca got into his cousin's car and followed the green car. Sometime later, a police officer started following them. The green car eventually stopped in the driveway of a house, and Menchaca pointed the car out to the police officer. The two men exited the green car and started running. Menchaca returned to the tire shop and later went to the police station to give a statement. Menchaca identified the knife that had been recovered from the green car as the knife Ramon had waved at him. Officer Richard Bryan began following Menchaca and his cousin when he observed their car speeding and running stop signs. When he caught up to them, Menchaca told Officer Bryan that the suspects were in the green car which had stopped in the driveway of a house. Officer Bryan saw Gonzalez in the back yard of the house. Although Officer Bryan exited his car and yelled for Gonzalez to stop, Gonzalez ran away, and Officer Bryan lost sight of him. As Officer Bryan continued to chase Gonzalez, he encountered Ramon, who was walking toward Officer Bryan giving up. Officer Bryan asked Ramon where his buddy ran. Ramon told Officer Bryan that Gonzalez had run to the front of the house. As Officer Bryan was returning to his patrol car with Ramon, Detective Powers was driving along beside them. When they turned a corner, Ramon saw Gonzalez in the driver's seat of the green car. Detective Powers quickly parked at the end of the driveway behind the green car. Detective Powers removed Gonzalez from the car and arrested him. Gonzalez was not wearing a shirt when he was arrested. The video camera in Officer Bryan's car had been activated during his pursuit of the cars, and a videotape of the activity up until after the arrests were made was introduced into evidence and shown to the jury. Officer James North arrived at the scene and was given a description of the suspects and their vehicle which he sent out over the radio. When Officer Bryan informed dispatch that he thought he had seen the vehicle, Officer North proceeded to that location. When Officer North arrived, he escorted Gonzalez into the back of one of the patrol cars. Another officer arrived and was asked to try to locate the purse. Officer North proceeded back to the Money Box and explained to Macias that the officers were going to drive by with the suspects in their cars to determine if Macias could identify them. Macias identified Ramon. Officer North then returned to the green car to inventory it. Officer North located sunglasses, a large kitchen knife, a shirt matching the description given by one of the witnesses, two additional shirts, and a baseball cap. All three shirts were similar with white and blue or a darker colored stripes. One of the shirts was crumpled up and damp as if it had been recently worn. Macias's purse was later recovered from the bushes around the house. Detective Powers briefly conversed with Officer Bryan when they saw Gonzalez in the green car. Detective Powers parked his car at the end of the driveway and went to the car to arrest Gonzalez. Detective Powers observed a knife on the floor board of the car. Detective Powers drove his car with Ramon in the back seat through the parking lot of the Money Box for identification. Detective Powers took Macias's statement and took her to the holding cell to determine if she could again identify Ramon because she had calmed down. Macias again identified Ramon as the person who stole her purse. Sufficiency
In reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways the evidence may be factually insufficient. First, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, when there is evidence both supporting and contradicting the verdict, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. "This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. When performing a factual sufficiency review, we give deference to the jury's determinations, including determinations involving the credibility and demeanor of the witnesses. Id. at 481. We may not substitute our judgment for that of the jury's. Id. at 482. Mere presence or even knowledge of an offense does not make one a party to the offense. Suarez v. State, 31 S.W.3d 323, 327 (Tex.App.-San Antonio 2000, no pet.). Presence at the scene of the commission of the offense is, however, a circumstance which, when taken with other facts, may be sufficient to show that the accused was a participant. Id. Moreover, one's acts committed after the offense is completed cannot make him a party to the offense. Id. However, acts committed before, during, and after the offense may be considered by the court in deciding whether a defendant participated in a common scheme for purposes of party liability. Id. And flight, though not dispositive, can be considered by the trier of fact as an indication of guilt. Id. In this case, the evidence established that Gonzalez was present at the scene. Ramon briefly conversed with Gonzalez before he approached Macias and stole her purse. Gonzalez had positioned the car in a manner to make a quick exit. Gonzalez was driving quickly away from the scene and even ran a red light. Gonzalez ran away from Officer Bryan, returned to the green car, and attempted to drive away. This evidence is factually sufficient to support Gonzalez's conviction as a party to the offenses. Although Gonzalez attempts to discredit the testimony of the witnesses with various alleged inconsistencies in their testimony, we defer to the jury's determinations involving the credibility and demeanor of the witnesses. Id. at 481. Ineffective Assistance of Counsel
In his second issue, Gonzalez contends trial counsel rendered ineffective assistance of counsel by failing to object to the admissibility of nineteen hearsay statements. The State responds that five of the statements were made by Ramon and were admissible as statements of a co-conspirator or as a present sense impression. The State further responds that the remaining fourteen statements were made by the victims or the officers describing the events as they took place and were admissible as present sense impressions. To prevail on a claim for ineffective assistance of counsel, Gonzalez must show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). In addition, Gonzalez must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. The record in this case is silent as to the reason trial counsel failed to object to the statements in question. The record does reveal that trial counsel interposed numerous objections during the course of the trial. Since the record is silent, Gonzalez cannot overcome the presumption that his trial counsel's decisions during trial fell within the wide range of reasonable professional assistance. Id. This opinion does not preclude Gonzalez from raising his ineffective assistance claim in an application for post-conviction writ of habeas corpus which must be filed in the trial court. See id. at 814-15 (noting recourse available via an application for writ of habeas corpus); Tex. Code Crim. Proc. Ann. art. 11.07, § 3(b) (Vernon 2005) (providing that an application for writ of habeas corpus after final conviction in a felony case must be filed with the clerk of the court in which the conviction being challenged was obtained). Motion to Dismiss
In his final issue, Gonzalez asserts that the trial court abused its discretion in failing to hear and rule on his motion to dismiss his appointed trial counsel. If a defendant is displeased with his appointed counsel, he must bring the matter to the court's attention, which means more than merely filing a motion to dismiss counsel. Malcom v. State, 628 S.W.2d 790, 791-92 (Tex.Crim.App. 1982) (trial court is under no duty to sua sponte hold a hearing); Salazar v. State, No. 04-04-00363-CR, 2005 WL 1397142, at *4 (Tex.App.-San Antonio June 15, 2005, no pet.) (not designated for publication). The defendant bears the burden of making the trial court aware of his dissatisfaction with counsel, stating the grounds for the dissatisfaction, and substantiating the grounds. Hill v. State, 686 S.W.2d 184, 187 (Tex.Crim.App. 1985); see also Salazar, 2005 WL 1397142, at *4. Gonzalez's motion does not contain a request for a hearing. See Salazar, 2006 WL 1397142, at *4. No oral or written motion for a hearing or request for a ruling appears in the record. See id. In fact, there is nothing in the record to indicate the trial judge was made aware of Gonzalez's dissatisfaction with his counsel, the grounds for such dissatisfaction, or his desire to have new counsel appointed. See id. Because there is no indication in the record that the trial court was made aware of Gonzalez's motion, the trial court did not abuse its discretion in not holding a hearing or ruling on Gonzalez's motion to dismiss. See id. Conclusion
The trial court's judgment is affirmed.