Opinion
Nos. 01-02-00242-CR, 01-02-00243-CR
Opinion issued October 2, 2003. Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause Nos. 884460, 884472
Panel consists of Justices Hedges, Nuchia, and Higley.
MEMORANDUM OPINION
In a joint trial involving two indictments, a jury found Christopher Dwight Hubert, appellant, guilty of aggravated robbery and assessed punishment at 22 years' confinement in each cause. This appeal derives from those two convictions (trial cause numbers 884460 and 884472, and appellate cause numbers 01-02-00242-CR and 01-02-00243-CR, respectively). Because both appeals raise substantially the same issues, we address them together on appeal. With regard to both cause numbers, appellant contends that (1) the evidence was factually insufficient to support conviction, and (2) he was denied effective assistance of counsel. We affirm both judgments. Background On July 17, 2001, at approximately 3:15 a.m., Henry Allen stopped at a convenience store at the corner of Telephone Road and Almeda-Genoa. As Allen walked towards the store, appellant and another individual pulled up next to Allen's red Geo Prism in a dark colored vehicle. Appellant approached Allen and pointed a gun at him. Appellant ordered Allen to give appellant the money Allen held in his hand as well as Allen's gold-chain necklace. Allen placed the money and necklace on the ground and backed away. Appellant then grabbed the money and necklace and drove off in Allen's red Geo Prism. Appellant's passenger drove off in the other car. On July 17, 2001, at approximately 4:15 a.m., Jack Clark had automobile trouble on Highway 146 in Baytown while on his way to work. Clark pulled his truck over into the emergency lane of the highway and waited for assistance. At approximately 5:30 a.m., a red, four-door Geo sports car parked in front of Clark's disabled truck and a black male, whom Clark identified as appellant, asked whether Clark needed assistance. Clark told appellant that assistance was on the way and he did not need help. Appellant returned to the passenger side of the red sports car, reached in, and pulled out a semi-automatic pistol. Appellant then walked back to Clark, pointed the pistol at him, pushed him, poked the gun in his ribs, and demanded money. Clark told appellant that he did not have any money. Appellant then took a backpack from Clark's truck and left in the red sports car. The backpack taken by appellant contained $560.00 in cash, credit cards, a day planner, and a .9 millimeter Baretta gun. Shortly thereafter, Clark flagged down a police officer and gave him the license plate number of the red sports car. As Clark spoke to the officer, the officer learned that the car had been set on fire one or two exits down from where Clark's truck had stopped. Clark was unable to retrieve any of his property from the burned car. Both Allen and Clark identified appellant from a photo spread as the gunman who robbed them. Testimony was also presented at trial on several extraneous offenses in which appellant was identified as the perpetrator. In one of these offenses, which also occurred on July 17, 2001, at approximately 4:40 a.m., Haywood George was stopped at a service station when a small, two-door red sports car pulled in front of his car. A male, whom George identified as appellant, exited the car, holding a gun, and demanded all of George's money. George testified that he saw a female in the driver's side of the red car and what appeared to be a small child in the back seat. Sufficiency of the Evidence In appellant's first point of error in each cause, he contends that the evidence was factually insufficient to support the conviction for aggravated robbery. In a factual-sufficiency review, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred.See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003); Kingv. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). We must avoid substituting our judgment for that of the factfinder. King, 29 S.W.3d at 563. The factfinder is the sole judge of the weight and credibility of witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In our review, we must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant contends that the evidence is factually insufficient to establish his identity as the person who committed the aggravated robbery in both causes. Specifically, appellant contends that the evidence suggests otherwise, based on evidence presented with respect to the persons involved in the robberies, the manner of approach and commission of the offenses, the weapon used, and the physical description of the perpetrator. First, appellant asserts that the testimony offered at trial indicates that, although the robberies in these two appeals and the extraneous offense involving George occurred within about a two-hour time span, the number and description of the perpetrator's passengers or accomplices were different in each of the three robberies. In support of this assertion, appellant points to the following testimony: (1) Allen testified that there were two male participants during his robbery; (2) George testified that he observed a woman and a child in the car during his robbery; and (3) Clark testified that he observed one passenger in appellant's vehicle. Appellant contends that the identity of appellant as the perpetrator is therefore weak and greatly outweighed by evidence suggesting that multiple persons were involved in the commission of these offenses. Second, appellant contends that, in each case, the perpetrator had a different manner of approach and commission of the robbery. Appellant argues that because each robbery was different, they could not have all been committed by him. In support of this argument, appellant points to Allen's testimony that the perpetrator held the gun at head level in view of the Conoco clerk and demanded the money from Allen. Appellant attempts to distinguish the above approach from that in the George robbery, wherein the perpetrator never pointed the gun at George, held the gun close to the car out of view, first took the money in George's hand and then asked for the money in his pocket and his wallet. Similarly, appellant attempts to distinguish the approach in the above robberies from that used in the Clark robbery. Clark was robbed as he stood next to his broken truck on the highway. The perpetrator first asked Clark if he needed help, then went back to his car, pulled out a gun, walked back and pointed the gun at Clark, pushing him and demanding money. The perpetrator in the Clark robbery also used vulgar language. Third, appellant contends that the evidence at trial indicated that a different weapon was used in each robbery. Appellant cites to portions of the record where (1) Allen testified that the perpetrator carried a black, long-barrel gun with a brown handle; (2) George testified that the perpetrator used a large greenish-colored gun; and (3) Clark testified that the perpetrator used a semiautomatic pistol during his robbery. Appellant also cites to testimony given by Officer Sherrouse stating that the descriptions of the weapons used in the robberies did not all include the same type of weapon. Fourth, appellant contends that the evidence at trial indicated discrepancies in the description of the perpetrator by the victims. Allen described the perpetrator as being a black male, between 5'9" and 5'10" and testified that he was not sure whether the man had any facial hair. George described the perpetrator as having worn a small brown cap, but he could not recall if the perpetrator had any gold teeth. Clark testified that the perpetrator was somewhere around 6' to 6'2" tall, that he did not have facial hair, and that he did have some gold teeth. Although there was some discrepancies in the victims' testimony, all three witnesses made positive identifications of appellant as the gunman either from a photo spread or lineup. Also, all three victims subsequently made in-court identifications of appellant at trial. Moreover, the State presented the following evidence: (1) the three robberies occurred within two hours of one another in the same general area; (2) in the first robbery, the perpetrator stole Allen's red sports car; (3) the following two involved a red sports car; and (4) Clark, the victim in the third robbery, reported a license plate number matching that of Allen's car. After reviewing all of the testimony, we cannot say that proof of guilt is so obviously weak as to undermine confidence in the jury's determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See Zuliani, 97 S.W.3d at 593-94; King, 29 S.W.3d at 563. We overrule appellant's first point of error in each cause. Ineffective Assistance of Counsel In his second point of error in each cause, appellant argues that his trial attorney rendered ineffective assistance of counsel by failing to (1) object to the admission of evidence of extraneous offenses, (2) intelligently advise appellant regarding appellant's punishment election, (3) request notice of the State's intent to introduce extraneous offense evidence in its case-in-chief, and (4) object to the State's failure to file notice of consolidation and joinder of trial cause numbers 884460 and 884472. To determine whether a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v.Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). First, appellant must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; Howland v. State, 966 S.W.2d 98, 104 (Tex. App.-Houston [1st Dist.] 1998), aff'd, 990 S.W.2d 274 (Tex.Crim.App. 1999). Second, appellant must establish that trial counsel's performance was so prejudicial that it deprived him of a fair trial. Howland, 966 S.W.2d at 104. Thus, appellant must show that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Appellant must overcome the presumption that trial counsel's strategy was sound. Gamble, 916 S.W.2d at 93. An appellant "making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). No motion for new trial was filed in either cause. The record is silent as to what appellant's counsel's trial strategy was. To find that trial counsel was ineffective based on any of the asserted grounds would call for speculation, which we will not do.Gamble, 916 S.W.2d at 93. Appellant's second point of error is overruled in each cause. Conclusion We affirm the judgments of the trial court.
Henry Allen was the complainant in trial cause number 884472.
Jack Clark was the complainant in trial cause number 884460.
George was a victim in an extraneous offense.