Opinion
No. 05-01-01341-CR.
Opinion Filed April 3, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-48258-Q. Affirmed.
OPINION
Appellant James Arthur Hall was charged by indictment with the felony offense of aggravated robbery with a deadly weapon, enhanced by a prior conviction for aggravated robbery. The jury trial that commenced on Hall's plea of not guilty resulted in a guilty verdict. The jury was discharged and the trial court, after Hall pleaded true to the enhancement paragraph, sentenced Hall to twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Hall brings two points of error contesting the legal and factual sufficiency of the evidence. In a final point of error, Hall alleges ineffective assistance of counsel. We affirm. On January 11, 2001, the victim, Ronald Welch, an off-duty cab driver, parked his minivan cab in a Minyard's food store parking lot. On his way into the store, Welch was approached by Hall who asked for a cigarette. Welch turned Hall down without incident. Returning to his cab with groceries, Welch was again approached by Hall, who asked this time for money. Welch declined again, but Hall followed him and talked to him. Hall's attitude changed to anger, and he said "I'll just take what I want." Almost contemporaneously with this threat, as Welch opened the door to get in, Welch saw Hall reach into his pocket as if to remove something. Fearing that the "something might be a weapon," Welch began yelling for security. At that point, Welch saw Hall pull something shiny out of his pocket. However, rather than flee, Welch called for help because he did not want this to happen to someone else later if all he did was drive away. Though at trial Welch could not testify that the shiny object was a knife, at the time of the offense, a Minyard's security guard standing at the front of the store heard Welch shout "He pulled a knife on me." Hall retreated, but was approached quickly by the security guard, off-duty uniformed Salina police officer Chris Sparks. Sparks drew his pistol, pointed it at Hall, and ordered him to take his hands out of his jacket pockets. As Hall did so, a knife appeared in one of his hands. On request, Hall dropped the knife-a plain, non-folding, steak knife-to the ground. Sparks retrieved the knife and handcuffed Hall, taking him into custody. Another shopper, Jose Castillo, witnessed the altercation. Castillo saw Hall holding what was clearly, to Castillo, a knife pointed at Welch as Welch was entering his cab. Castillo also witnessed Hall's retreat, capture, and the dropping of the knife to the ground. When Dallas police arrived, Hall was turned over to them for transport to the county jail. At trial, Hall chose not to testify and present his version of the incident. In points one and two on appeal, Hall maintains the evidence is legally and factually insufficient. The standard of appellate review on those two points is well established. In reviewing the legal sufficiency of the evidence, the reviewing court must consider the evidence in the light most favorable to the verdict, and then determine whether, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim. App. 2000). In this analysis, the fact finder is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). Such a review allows the fact finder great latitude in carrying out its responsibility to draw reasonable inferences from basic facts in order to determine ultimate facts. See Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim. App. 2000). Where evidence is subject to equally reasonable interpretations, the fact finder's, in this case the jury's, decision is not unjust merely because it resolved conflicting views of evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). In reviewing the factual sufficiency of the evidence, the reviewing court, rather than ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, instead asks whether a neutral review of all the evidence, both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). This review is neutral because the evidence is not considered in the light most favorable to the State. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Rather, this is a comparative review, wherein the appellate court considers all of the evidence in the record related to an appellant's sufficiency challenge, comparing the evidence which tends to prove his guilt with the evidence which tends to disprove it. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim. App. 1997). Germane to this case, the elements of aggravated robbery are (1) a person; (2) in the course of committing theft; (3) with intent to obtain or maintain control of property; (4) intentionally or knowingly; (5) threatens another with, or places another in fear of; (6) imminent bodily injury or death; and (7) uses or exhibits (8) a deadly weapon. See Sanchez v. State, 722 S.W.2d 781, 785 (Tex.App.-Dallas 1986, pet. ref'd); Tex. Pen. Code Ann. §§ 29.02-03 (Vernon 1994). Here, the indictment alleged that Hall intended to obtain money. The combined testimony of the State's three key witnesses had Hall (1) following Welch to his van and standing at the driver's door stating, "I'll just take what I want," (2) this was after Welch had repeatedly turned down Hall's requests for money and cigarettes, (3) contemporaneous with this statement, Hall withdrew a knife from his pocket but retreated immediately after Welch called for store security, (4) the security officer captured Hall just a short distance away while Hall withdrew a knife from his coat pocket and was holding the knife in his hand, and (5) the knife was seized after Hall was ordered to drop it. On appeal, Hall argues that no witness knew what he was referring to when he said he would take what he wanted. Hall contends that no witness could say that Hall actually attempted to take anything from Welch. Hall points out that Welch could not identify the item Welch saw in Hall's hand as a knife. Additionally, Hall contends the evidence does not show Welch was threatened with, or placed in fear of, imminent bodily injury or death. Therefore, argues Hall, the State failed to prove all of the essential elements of aggravated robbery. We disagree. As to the elements "in the course of committing theft and with intent to obtain or maintain control of property," the State alleged in the indictment that Hall intended to take money from Welch. Although Hall never actually demanded or took money from Welch, intent to steal may be inferred from circumstantial evidence. See Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim. App. 1996). As narrated above, Hall approached Welch asking for some money. When Welch turned him down, Hall became angry and said that he would just take what he wanted. Hall also reached into his pocket and, from Castillo's vantage point, pulled out a knife and pointed it at Welch. From this evidence, it can be readily inferred that Hall intended to steal money from Welch. We conclude, therefore, that the proof underlying the jury's finding on this issue is not legally or factually insufficient. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 11. As to the element that Hall used or exhibited a knife, Welch testified that almost contemporaneously with his statement that "I'll take what I want," Hall made a motion of pulling something out of his pocket and soon thereafter Welch saw something shiny in Hall's hand. Welch thought it was some kind of weapon. When Sparks stopped Hall, Hall displayed a knife when he removed his hands from his pockets. Castillo clearly saw Hall holding a knife pointed at Welch as if he were going to attack him while standing right at Welch's van door, leaving only when Welch called for security. Viewing all of the evidence that Hall used and exhibited a knife, we cannot say the jury's finding of same is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 129. We further believe that after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that Hall used and exhibited a knife during the commission of this offense. See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). As to the sufficiency of the evidence of the element of robbery that a person "threatens another with, or places another in fear of imminent bodily injury or death," case law dictates that the fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will. See Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989). The appropriate procedure on appellate review is to determine if the words and conduct of the accused were sufficient to place a reasonable person in the victim's circumstances in fear of imminent bodily injury or death. See Welch v. State, 880 S.W.2d 225, 226 (Tex.App.-Austin 1994, no pet.). Welch, at one point on direct examination, said that when he saw the silvery object being removed from Hall's pocket that he, Welch, was scared and afraid Hall might hurt him. That fear arose, in part, because he did not know what kind of mental shape Hall was in. Later, on cross examination, he added that he wasn't paying that much attention to Hall when Hall made the statement about taking what he wanted and was not really worried at that point. Castillo, the third State's witness, said Welch had actually backed out of the parking space but returned to step out and call for security. Welch's initial testimony that he was scared and afraid Hall might hurt him, coupled with Hall's anger and the display of the shiny object, is in itself a sufficient showing that Welch was in fear of imminent bodily injury. See Vaughn v. State, 634 S.W.2d 310, 311-12 (Tex.Crim.App. [Panel Op.] 1982). True, later on in the trial some of his and Castillo's testimony is arguably inconsistent with Welch's initial statement, but it is the role of the jury to resolve any conflicts or inconsistencies in testimony even if the inconsistencies are within the same witness's testimony. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). We therefore assume that the jury resolved any conflicts or inconsistencies in Welch's testimony in favor of the implied finding that Welch was threatened or placed in fear of imminent bodily injury or death, which is contained in their express finding of the guilty verdict. As a result, we can neither say that no rational trier of fact would have found Welch was placed in fear of imminent bodily injury nor say that the evidence supporting a finding that Welch was placed in fear of imminent bodily injury or death is so weak as to undermine our confidence in the verdict. See id. at 784-85; Liggens v. State, 50 S.W.3d 657, 661 (Tex.App.-Fort Worth 2001, pet. ref'd.). Hall's points of error one and two, dealing with the legal and factual sufficiency of the evidence, are overruled. In his last point of error, Hall claims ineffective assistance of counsel in that his attorney did not file a "Motion To Testify Free From Impeachment." Counsel called Hall to the witness stand, outside the jury's presence, to put Hall's decision not to testify on the record. During counsel's examination, Hall indicated he feared he would be impeached with his prior 1983 convictions for burglary of a habitation and aggravated robbery, and he had decided not to testify. Hall had received fifteen-year sentences in each of those prior convictions. Hall was released on parole in 1987 and released from parole in 1998. On appeal, Hall cites Theus v. State and maintains that had such a motion been filed it would most certainly have been granted, and, therefore, he would be able to testify about the events in the parking lot on the date of the offense, January 11, 2001, without fear of impeachment with his prior convictions. See Theus v. State, 845 S.W.2d 874, 880-81 (Tex.Crim. App. 1992). Theus involved very similar facts, including the filing of a "Motion to Testify Free From Impeachment With Prior Conviction." Id. at 877. In Theus, the trial court overruled the motion and allowed impeachment of the defendant with an arson conviction less than ten years old. Id. The court of criminal appeals reversed the court of appeals' affirmance of the defendant's conviction after setting out five non-exclusive factors that should be considered in deciding whether the probative value of admitting a prior conviction outweighs its prejudicial effect. Id. at 880-81; Tex. R. Evid. 609(a). Those five factors included: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense, and the defendant's subsequent criminal history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant's testimony; and (5) the importance of the credibility issue. Theus, 845 S.W.2d at 880-81. Additionally, the State notes that rule 609(b) carries the same balancing of probative value versus prejudicial effect, except that under that rule, effective where the prior conviction and release from confinement is more that ten years in the past, the probative value must substantially outweigh the prejudicial effect. In this case, Hall was released from confinement more than ten years before the event that caused his arrest and indictment. Thus, rule 609(b) would seem to be the applicable rule to the fact situation at bar. In order to prevail in a claim of ineffective assistance of counsel involving error at either the guilt/innocence phase or the punishment phase of a trial, a defendant must demonstrate by a preponderance of the evidence: 1) that his lawyer's performance was deficient, i.e., that the lawyer made an error or errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment; and 2) that the deficient performance prejudiced the defense because the errors of counsel were so serious that there exists a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999); Rodriquez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App. 1995). A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Strickland, 466 U.S. at 694; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986). In examining the record to determine if our confidence in the outcome is undermined, we are guided by the following wording from Strickland: In making this determination [that the outcome would have been different], a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Strickland, 466 U.S. at 695-96. Here, it is arguable that had Hall's lawyer filed the motion filed in Theus, the trial court might have granted it since Hall was released from prison more than ten years before the alleged commission of the offense for which he was on trial. Then again, the trial court might have found under the specific facts and circumstances of this case that the conviction's probative value substantially outweighed its prejudicial effect. However, since one of those prior convictions was for the same offense that Hall was presently being tried for, the trial court might have found that the conviction's probative value was itself substantially outweighed by its prejudicial effect. All of this goes to the first prong of the Strickland test evaluating whether counsel's performance in not filing the Theus motion was deficient. We need not get mired in such an analysis, however, because we find that Hall has wholly failed to meet his burden under the second prong of the Strickland test. Hall never gave an offer of proof as to what he would have testified. He did take the witness stand outside of the presence of the jury on the question of whether or not he was going to testify, and ultimately chose not to, fearing impeachment for the two prior convictions. He did not go further and say in any manner what his testimonial evidence would have been. In his brief, Hall contends that had he testified, his testimony would have "enabled the jury to fill in the gaps and better understand the discrepancies in the testimony and decide with a full set of facts what really happened in the parking lot," and that he would have had "a different story to tell." This rather vague speculation gives us little with which to be convinced by a preponderance of the evidence that the result of the proceedings would have been different or to undermine our confidence in the outcome. Strickland, 466 U.S. at 694. We therefore conclude that Hall has failed to meet his burden of showing ineffective assistance of counsel, and thus we overrule his third point of error. The judgment of the trial court is affirmed.
Hall does not argue that there was a lack of proof that the knife was a deadly weapon.
See Theus v. State, 816 S.W.2d 773, 774 (Tex.App.-Houston [14th Dist.] 1991, rev'd 845 S.W.2d 874 (Tex.Crim.App. 1992).
Rule 609(a) states:
General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
See Tex. R. Evid 609(a) (Vernon Supp. 2002).
Rule 609(b) states:
Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
See Tex. R. Evid 609(b) (Vernon Supp. 2002).