No. 05-04-01397-CR
Opinion issued January 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-73962-PL. Affirmed.
Before Justices MORRIS, WRIGHT, and FRANCIS.
Opinion By Justice MORRIS.
Following his conviction for robbery, Carron Henderson now contends the evidence against him is factually insufficient to support his conviction. He further contends he received ineffective assistance of counsel at trial. Concluding appellant's issues are without merit, we affirm the trial court's judgment.
Factual Background
At approximately 10:40 a.m. on September 21, 2003, a drug store cashier noticed a man she identified at trial as appellant looking around the store. She told her manager that appellant looked "suspicious." The manager approached appellant and asked if he needed any help. Appellant became belligerent and demanded to know why the store staff always asked him if he needed any help. The manager replied that he was simply checking to see if appellant needed assistance. Then appellant punched the manager in the throat, knocking him to the ground, and walked out of the store. The manager instructed the cashier to call 911. Afterward, he followed appellant out to his car and wrote down the car's license plate number. The store manager identified appellant at trial and in a photo lineup. He testified that appellant "flipped out" and started using profanity when he asked if he could help him. Appellant threw a manilla folder at the manager. When he did, the manager saw open packages of non-prescription medications and condoms where the folder had been. The manager believed the packages came from the store and appellant had taken the contents. The manager then asked appellant to leave the store. As the manager was following appellant out, appellant turned around and punched him in the throat. According to the manager, appellant proceeded to walk out of the store. Before he drove away in his car, he threw a metal can of insect repellent at the manager but hit an elderly woman leaving the store. The manager described appellant's car as a black foreign sedan. He wrote down the license plate number of the car for police. The manager testified that he did not give police the surveillance videotape from the store because they did not want it. The incident was not captured by the store's surveillance camera, and the only image of appellant did not show his face. Neither the cashier nor the manager recalled seeing appellant in the store before the date of the robbery. The manager stated, however, that he was "one hundred percent sure" appellant was the man who committed the robbery. Police used the license plate number reported by the store manager to link the car used to leave the scene of the robbery with appellant's sister. No one had reported that the license plate for the car had been stolen. When an officer attempted to call appellant's sister, he spoke with appellant's father, who said that appellant now drove the car. The officer asked that the father have appellant call him at his office. He called for appellant on two other occasions as well. Appellant returned his phone call only once. He left a voice message at approximately 2:00 a.m. one morning and did not leave a phone number where he could be reached. Eventually, the officer was able to speak with appellant while he was jailed for a different matter. Appellant told the officer his car had been in the shop at the time of the offense. The officer then suggested to appellant that he would need to see a receipt for the car repair to follow up on the information. Appellant's father provided the officer a receipt showing that the car had work done on its alternator on September 22, 2003, the day after the offense. The officer called the shop where the work had been done, and the owner of the shop told him that the car had not been kept there overnight when the alternator was replaced. The owner also told the officer that appellant's father had told him he needed a receipt because he wanted to return the alternator that had been purchased for that repair. The shop owner testified that he had done quite a bit of work on the cars of appellant's father and sister. He stated that he does not always give the father a receipt. The shop owner did not recall when he had worked on the alternator of appellant's car. He used the date of September 22, 2003 on the receipt because that was the date appellant's father suggested to him. The shop owner had "no idea what had taken place." He believed the father was asking for a receipt after the fact because "he needed a receipt . . . showing that the car had had an alternator installed." The shop owner claimed appellant's father said "that they would give him another [alternator], if he could show that he had had one installed." Appellant's father testified for the defense. He claimed he had called the officer and told him that appellant's car was inoperable on the day he allegedly committed the robbery. He stated that he knew appellant's car was inoperable on that particular day because that was also the day appellant failed to arrive at the church where his father is a pastor. Appellant drives the church's bus on Sunday mornings. On September 21, 2003, appellant failed to arrive on time and called his father to tell him his car would not start. At approximately 10:00 a.m. that morning, appellant's father picked him up and brought him to the church so that appellant could pick up the church members who depended on a ride. Appellant's father testified that the next day, September 22, appellant had the alternator replaced in his car. Two of the members of appellant's father's church also testified for the defense. They both stated that they specifically remembered appellant picking them up late for church on September 21. They testified that appellant picked them up at approximately 10:30 a.m. One of the witnesses said she could specifically recall the date because it was her son's birthday. Appellant's late arrival gave her time to call her son that morning before church. Appellant's parents and members of his father's church also testified about appellant's good character. In his defense, appellant confirmed that his car had not been working on the day of the robbery. He claimed the car's front license plate had been missing for months, but he had not reported its loss to the authorities nor replaced it. The drug store manager testified when he was recalled by the State that, after hearing appellant's claim about the license plate, he remembered that the car the robber escaped in was missing a front license plate. According to appellant, he telephoned the investigating officer three to four times and left him several messages, along with a phone number where he could be reached. Appellant claimed he was not familiar with the drug store where the robbery occurred. He admitted having previously been convicted of theft by check. Appellant testified that the car was not working the entire weekend of the alleged theft. He acknowledged that, despite this fact, he did not call his father at the church until that Sunday. He claimed he planned to have his sister who lived in the same apartment complex jump-start the car that morning, but she had already left by the time he went to see her. Appellant claimed he never uses profanity and has never assaulted anyone. Discussion
In his first issue on appeal, appellant claims the evidence against him is factually insufficient to support his conviction. In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination or, 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). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). Appellant's case was essentially a swearing match between two sets of witnesses. The drugstore cashier and manager testified that appellant was the man who had committed the robbery. The robber left the drug store in a car matching appellant's car, down to the license plate number and the missing plate at the front. Appellant's family and members of his father's church, however, provided alibi testimony showing that appellant's car was inoperable on the date of the robbery. The owner of the shop where appellant's car was fixed had given him a receipt for repairs done the day after the robbery, but the owner admitted he could not say what day the repairs were actually done. The trial court, as fact finder, was entitled to believe certain witnesses over others. See id. Deferring to the trial court's role and examining all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support appellant's conviction. We resolve appellant's first issue against him. In his second issue, appellant claims he was denied effective assistance of counsel at trial. Appellant specifically argues trial counsel admitted he was unable to think clearly due to a stroke he had previously suffered. Appellant's trial was the first he had taken since the stroke. Counsel also admitted he had erred in not invoking "the Rule" in the case, thereby allowing all the witnesses to hear each others' testimony. Counsel further admitted he was confused about which alibi witness had recalled the date appellant was late with the church bus. Appellant also contends counsel was ineffective because the record showed he was unaware that, if found guilty in a nonjury trial in an aggravated case, appellant would be ineligible for probation. This lack of awareness did not relate to appellant's punishment for the robbery that is the subject of this appeal, but rather three companion cases of aggravated assault, which were tried in the same proceeding. To prevail on his ineffective assistance claim, appellant must prove by a preponderance of the evidence both that (1) counsel's performance fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 695 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). A reasonable probability is one sufficient to undermine confidence in the trial's outcome. See Thompson, 9 S.W.3d at 812. Allegations of ineffective assistance of counsel must be firmly founded in the record. See id. at 813. Here, counsel stated that appellant's case was his first trial since he had suffered a stroke in 2002. He admitted that, in hindsight, his decision not to invoke "the Rule" was probably a bad one. Because the drug store manager was able to hear appellant's testimony, when recalled later at trial, he remembered that the car at the robbery-like appellant's car-was missing a front license plate. Counsel further admitted that he had confused two of appellant's alibi witnesses. This error, however, resolved itself once the second alibi witness testified. Despite counsel's alleged errors, appellant has failed to show that, but for the errors, the result of his trial would have been different. The State presented two unbiased witnesses who unequivocally identified appellant as the robber. A car matching appellant's was used as the robber's getaway car. To counter this evidence, counsel fully developed appellant's alibi defense, despite his confusion over the witnesses involved. Moreover, any error appellant's counsel made in determining appellant's probation eligibility in the companion cases had no effect on the outcome of his robbery trial. Thus, appellant has failed to show that, but for his counsel's representation, the result of his case would have been different. Because he has failed to meet the second prong of the Strickland standard, we resolve appellant's second issue against him. We affirm the trial court's judgment.