No. 05-02-00594-CR No. 05-02-00595-CR
Opinion issued June 20, 2003 Do Not Publish
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-57079-LW F01-57080-LW. AFFIRMED
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
Opinion By Justice Morris.
In these two cases, Kevin Bernard Johnson challenges his convictions for the aggravated robberies of Randy Reyes and Martin Munoz. He complains in nine points of error that the trial court erred by denying his motions to sever, that he received ineffective assistance of counsel, and that the evidence against him is legally and factually insufficient. We affirm the trial court's judgments.
Factual Background
Randy Reyes and Martin Munoz were walking back to their car from a club. Munoz was so intoxicated Reyes had to help him walk. When they got to their car, appellant and his co-defendant Damien Jackson asked them for money or change. Munoz heard one of the men say "[L]et's do this." Then the men attacked Reyes and Munoz. Appellant shoved Reyes to the ground, held a knife to Reyes's face, and demanded his wallet. Reyes feared for his life. Appellant searched Reyes's pockets but was unable to find Reyes's wallet. Reyes heard Jackson shout "I got it" before appellant let him go. Meanwhile, Jackson, threw Munoz to the ground. He held Munoz by the neck and grabbed his wallet. Munoz feared Jackson was going to hurt him; he felt that Munoz might possibly kill him. Appellant and Jackson got into a car and began to drive away. An undercover police officer witnessed the occurrence. When the officer blocked appellant's car with his vehicle, Reyes saw appellant put something under the car before he ran from the scene. Munoz's wallet was found in the car. The undercover officer's testimony differed significantly from the testimony of Munoz and Reyes. The officer testified that Jackson (rather than appellant) had displayed a knife against Munoz and that Jackson (rather than appellant) had tried to hide a knife under the car. According to the officer, the lock blade knife found under the car, which had a blade of approximately three inches, could be a deadly weapon. A second police officer, who chased and ultimately caught appellant, agreed. Both appellant and Jackson were arrested. Appellant and Jackson were tried jointly. Jackson testified during the punishment phase of trial. He claimed he never touched Munoz the night of the offenses and that Munoz fell down on his own. He claimed Munoz dropped his wallet and he took the "opportunity" to steal it. According to Jackson, he and appellant did not know each other before that night. Appellant had agreed to give him a ride home from a club, and he and Jackson were walking to appellant's car when, according to Jackson, they got into a verbal confrontation with Reyes and Munoz. He claimed the verbal confrontation escalated into a physical fight simultaneously for both him and appellant. Jackson claimed he had a pocket knife that fell out when he got out of the car at the police officer's request. He also claimed no one displayed a knife during the confrontations. Jackson testified that neither he nor appellant had an intent to rob, but he acknowledged he took Munoz's money after they "got through wrestling." Jackson admitted he did not know what happened between appellant and Reyes; he stated that they were out of his line of sight. He specifically acknowledged to the trial court that he did not know whether appellant had gone through Reyes's pockets because he did not know what had happened between appellant and Reyes. Nevertheless, he stated that he "just thought [he saw] the guy run and fall and that was it." Appellant also testified during punishment. He claimed he and Jackson confronted Reyes and Munoz because Munoz was urinating in front of a store. Munoz cursed at appellant and Jackson when they told him to stop urinating. According to appellant, he chased Reyes, tripped him, then let him go and returned to his car when Reyes said that appellant's quarrel was with Munoz, not with him. Throughout the trial, appellant attempted to have his case severed from Jackson's. Appellant wanted to call Jackson as a defense witness but suspected that Jackson would exercise his Fifth Amendment right to refuse to testify in their joint trial. Appellant first urged his motion for severance before trial. In support of the motion, Jackson's attorney testified before jury selection that if Jackson decided to testify, he would say that "there was no robbery that took place" and "even if there was, [appellant] was not aware of it and played no part of it." The attorney testified that he would advise Jackson not to testify at trial. The motion to sever was denied at that time. After jury selection, appellant's attorney re-urged the motion to sever. The attorney stated that Jackson would testify to the following: . . . Mr. Jackson was operating alone, but they were separate. They came separate. They were there separate, they just met that night. They didn't go to this place together. They just happened to be there at the same time. Everybody was leaving the bar at the same time. And when this thing happened Mr. Jackson and Mr. Johnson didn't know each other prior to this offense. And, you know, Mr. Jackson and Mr. Johnson just happen to be there because they are walking in the same parking lot.
The attorney claimed Jackson would say appellant "had nothing to do with it." Again, the trial court denied the motion. Later in the trial, Jackson stated that he did not plan to testify. During the trial, appellant testified outside the presence of the jury that he had received a letter from Jackson stating appellant had nothing to do with the robberies. Appellant again re-urged his motion to sever. The trial court denied the motion, noting that even if the cases were severed, appellant's case would still precede Jackson's because his cases had the earlier cause numbers. The letter was admitted into evidence for record purposes. In the letter, Jackson swears appellant "had nothing to do with or partaken [sic], or even had the knowledge of knowing what had taken place" on the night of the offenses. Before the jury announced its verdicts and during the punishment phase of trial, the trial court denied the motion to sever two more times. At punishment, appellant's attorney argued that Jackson had intended to testify during the guilt-innocence phase of trial but decided not to when the police officer's testimony differed so radically from the testimony of Munoz and Reyes. The court reiterated that appellant would not be able to call Jackson as a witness even if the cases were severed because appellant's trial would precede Jackson's. Discussion
In appellant's first two points of error, he complains the trial court erred in refusing to sever his trial from Jackson's for the aggravated robberies of both Reyes and Munoz. If two defendants are set to be tried jointly for offenses growing out of the same transaction, but a joint trial would be prejudicial to one of the defendants, the trial court "shall order a severance as to the defendant whose joint trial would prejudice the other defendant." Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981). Severance is not a matter of right but rests within the sound discretion of the trial court. Peterson v. State, 961 S.W.2d 308, 310 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). To show an abuse of discretion, an appellant bears the heavy burden of showing clear prejudice. Id. To show clear prejudice on the basis of the right to have a co-defendant testify as a witness, the appellant must demonstrate (1) there was a bona fide need for the testimony, (2) the substance of the desired testimony, (3) the exculpatory nature of the testimony and its effect, and (4) the designated co-defendant would have testified in a separate trial. See Lacy v. State, 901 S.W.2d 518, 520 (Tex.App.-Tyler 1995, no pet.). Here, appellant has failed to show the trial court abused its discretion in denying his motion for mistrial. Jackson's testimony at the punishment phase of trial shows he could not exculpate appellant if he testified in a separate trial. Jackson essentially claimed that he formed the intent to steal from Munoz in the process of confronting him and that appellant had no intent to rob Reyes. But Jackson also admitted he could not see what was occurring between Reyes and appellant because they were out of his line of sight. Jackson could only testify that, as far as he knew, appellant (whom he had just met that night) did not have the intent to rob Reyes or assist Jackson in robbing Munoz just before he and appellant attacked the two complainants. Jackson's testimony did not exclude the possibility that appellant — like Jackson — formed the intent to rob in the course of assaulting Reyes. It also did not exclude the possibility that appellant formed the intent to assist Jackson in his robbery of Munoz. Jackson was unqualified to testify about appellant's mental state at the time of the robberies, and he could not see appellant and Reyes. Jackson's testimony did not contradict the State's evidence that he and appellant acted simultaneously and in concert with one another. Because appellant has not met the heavy burden of showing clear prejudice, he has failed to show the trial court abused its discretion in denying his motion for severance. See Metoyer v. State, 860 S.W.2d 673, 680 (Tex.App.-Fort Worth 1993, pet. ref'd) (holding trial court did not abuse discretion in denying severance where statement of co-defendant did not exculpate Metoyer); Rajski v. State, 715 S.W.2d 832, 834 (Tex.App.-Houston [14th Dist.] 1986) (holding co-defendant's claim of fault did not exclude Rajski's guilt), overruled on other grounds by Rutledge v. State, 749 S.W.2d 50 (Tex.Crim.App. 1988). We overrule appellant's first two points of error. In his next two points of error, appellant complains his trial counsel was ineffective because he failed to offer Jackson's letter into evidence before the jury, move for a new trial on the basis of newly available evidence from Jackson, or seek a continuance based on Jackson's unavailability. To show his counsel was ineffective, appellant must demonstrate first that trial counsel's performance was deficient because it fell below an objective standard of reasonableness and second that there is a probability sufficient to undermine confidence in the outcome that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). He must overcome the strong presumption that his attorney's conduct fell within the wide range of reasonable professional assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Appellant complains his trial counsel's errors prevented him from presenting evidence showing that Jackson alone committed aggravated robbery. But appellant never raised his ineffective assistance claims at the time of trial, and he filed only a general motion for new trial. Thus, we do not know counsel's reasons for handling appellant's defense the way he did. The reasonableness of his choices may depend on facts not in the appellate record. See id. Trial counsel should "ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Id. Here, appellant's attorney certainly attempted on several occasions to sever appellant's trial from Jackson's so Jackson could testify in appellant's defense. Based upon the totality of this record, we conclude appellant has failed to show counsel's performance fell below an objective standard of reasonableness. We overrule appellant's third and fourth points of error. In his last five points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his convictions. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). 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 jury'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 jury, 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). Applicable to the case involving complainant Munoz, a person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). We will address appellant's five separate sufficiency complaints one by one. In his fifth point of error, he complains the evidence is factually insufficient to support his conviction for the aggravated robbery of Munoz because the evidence indicates no deadly weapon was used against Munoz. Neither Munoz nor Reyes saw a knife when Jackson confronted Munoz. The eyewitness police officer, however, testified that he saw Jackson holding a knife in his hand as he stood over Munoz and saw Jackson hide a knife under the car. Both testifying police officers established that the knife found at the scene was a deadly weapon. Despite the fact that the officer's testimony may have conflicted with that of Munoz and Reyes, it was the jury's place to judge and weigh witness testimony. See Jones, 944 S.W.2d at 648. The evidence is factually sufficient to show a deadly weapon was used in the aggravated robbery of Munoz. We overrule appellant's fifth point of error. In his sixth and seventh points of error, appellant complains the evidence against him is legally and factually insufficient to support his conviction for the aggravated robbery of Munoz because there is no evidence Munoz was placed in fear of imminent bodily injury or death. Appellant points to Munoz's testimony that he was not "immediately" fearful of bodily injury or death when Jackson put his arm around his neck. Munoz, however, also testified that at the time of the robbery, he was afraid he might be physically harmed or killed. The evidence is legally and factually sufficient to prove Munoz was placed in fear of imminent bodily injury or death. We overrule appellant's sixth and seventh points of error. In his eighth point of error, appellant complains the evidence is factually insufficient to sustain his conviction for the aggravated robbery of Reyes because the evidence indicates a deadly weapon was not used against Reyes. Here, appellant relies on the police officer's testimony that Jackson, rather than appellant, both wielded a knife against Munoz and hid the knife under the car. Appellant contends the officer's testimony is more reliable than that of Munoz and Reyes because of his position and because he was not intoxicated on the night of the offenses. Reyes specifically testified that appellant threatened him with a knife during the robbery. His credibility was for the jury to decide. See id. We conclude the evidence is factually sufficient to show appellant used a deadly weapon when he robbed Reyes. We overrule appellant's eighth point of error. Finally, appellant contends the evidence is factually insufficient to prove he attempted to take Reyes's property. Reyes testified that appellant did not take his wallet or any money. Nevertheless, Reyes also testified that appellant demanded his wallet and searched his pockets. The evidence is factually sufficient. We overrule appellant's ninth point of error. We affirm the trial court's judgments.