Miller v. State

Full title: VICTORY JABBARR MILLER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Feb 4, 2009

No. 05-08-00082-CR (Tex. App. Feb. 4, 2009)

Opinion

No. 05-08-00082-CR

Opinion Filed February 4, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81361-07.

Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.

MEMORANDUM OPINION

Opinion By Justice LANG-MIERS.

Appellant Victory Jabbarr Miller¹ was convicted of robbery and sentenced to eighteen years in prison. Appellant raises two issues on appeal, arguing ineffective assistance of counsel and insufficiency of the evidence. We modify the judgment to correct a clerical error and affirm the trial court's judgment as modified.

1 Appellant's middle name is misspelled "Jabbaar" in the appellate briefing.

Background

During the early morning of December 6, 2006, Jose Gonzalez stopped at a Conoco gas station in Plano, Texas to get a cup of coffee and to put gas in his truck, a white Chevy S10 pickup truck with a camper. He stopped at the gas station on his way to work that morning because his truck's gas gauge was not working, and he was not sure how much gas he had. He got out of his truck and walked towards the station, but he forgot his wallet and he returned to his truck. He retrieved his wallet, but he "ended up leaving the keys behind" in his truck. He went inside the station, poured his coffee, and went to pay for his gas and ask the attendant to turn on the gas pump. When he looked out the window to identify the gas pump number, he saw a man in his truck. He ran out of the store, yelling, and opened his truck door. He backed away because the man inside his truck had a gun in his hand. A second person he thought was a woman got in the passenger side of the truck, and they drove away. Gonzalez asked the store clerk to call the police. He said that it was dark outside, the lighting in the gas station was dim, and he was frightened as a result of the robbery. Gonzalez testified that he could not identify the man who robbed him, but said the man was wearing a mask. He could not say what color the mask was or give any other details about what the man was wearing. Marshann Baker testified that around 4:00 p.m. on December 6, 2006, she was driving to her house in Grayson County to pick up some paperwork she needed to take to the Chrysler dealership in Bonham, Texas, about a car she recently bought there. She saw appellant and a woman on the side of the road. Because the woman was pregnant and it was cold outside, Baker stopped and asked the couple if they needed a ride. The couple asked Baker if she knew where they could sell a car, and she offered to let them ride with her to the Chrysler dealership. The couple accepted Baker's offer. Appellant introduced himself as "Slim." Baker and appellant exchanged cell phone numbers. On the way to her house, Baker passed a white pickup truck. The couple told Baker that was their truck and asked if she could "give them a jump" with their jumper cables. Baker agreed. The truck would not start, so the couple rode with Baker to her house and then to the Chrysler dealership. Appellant repeatedly insisted on giving Baker a $50 bill for gas. She accepted the money, put it in her wallet, then put her wallet in the console of her car. She stopped at her house to pick up the paperwork and left the car running. The couple stayed inside the car. When they arrived at the dealership, Baker introduced the couple to a salesman, and appellant introduced himself as "Victor or something." Baker talked to another salesman for fifteen or twenty minutes. Afterwards, she looked for the couple to see if they needed more help, but she could not find them. She tried to call appellant on his cell phone, but he did not answer, so she left. Baker stopped at a Dairy Queen on her way home and noticed that the $50 bill appellant had given her for gas was not in her wallet. When she got home, she discovered that two of her checks were missing. She went to the police station and reported her checks stolen. She also went back to the couple's white truck, wrote down the license plate number, and gave it to police. She also gave police the phone number appellant had given her. Police determined that the truck was Gonzalez's stolen truck. The Plano police department contacted Baker and asked her to give a statement. They also showed her a photo lineup, but she was not able to identify the perpetrator at that time because she "was so distraught over what had happened." During trial, Baker identified appellant as the man who rode with her and took her to the white truck:

[The State]: Today are you confident that you know the person who-

[Baker]: Yes, ma'am. As soon as I saw him in the courtroom this morning when I came in to be sworn in, yes.

[The State]: Do you see him in the courtroom today?

[Baker]: Yes, ma'am.

[The State]: Can you point him out and tell me what he's wearing?

[Baker]: This gentleman right here in the black suit.

[The State]: Please let the record reflect the witness has identified the defendant.

THE COURT: Alright, it will so reflect.

[The State]: And that was the man who rode with you and then took you to the white truck; is that correct?

[Baker]: Yes, ma'am.

During cross examination, appellant's counsel further confirmed that Baker recognized appellant:

[Appellant's counsel]: Now, identifying the person that's sitting here with me, is that because he's here on trial sitting with me or do you specifically-

[Baker]: No.

. . .

[Appellant's counsel]: Do you specifically remember him from over a year ago?

[Baker]: Yes, I do.

The officer investigating the robbery testified that Baker gave police the cell phone number appellant had given her, and when police ran it through a database, they determined the number belonged to appellant. He also testified that police found a gun in Gonzalez's recovered truck, which they determined was a fake gun. When the State asked the officer whether he would have felt threatened by the fake gun if someone had pointed it at him in the dark, he responded, "Yeah. You know, when someone sticks a gun in your face, you know, you're just looking at the gun. You're not trying to figure out if it's real or not." That night, appellant was arrested after an altercation at a motel in Bonham, Texas. Police read him his rights and questioned him. The interview was recorded by police and played for the jury during trial. During the interview, the officer questioning appellant said, "I want to talk to you about this deal in Plano involving a 1993 Chevy S10 truck with a black topper. That's the truck you broke down [in] when you were walking down the road." Appellant responded, "That was Mr. Juan's truck. He was full of crack that morning and he gave me permission to drive the truck. I have his, he left his ID in the truck and I have that and everything." Appellant also gave police his cell phone number, which was the same cell phone number he gave Baker. Appellant told police he goes by the names "Victory" and "Slim." After his truck was returned, Gonzalez found a wallet inside the truck and gave it to the police. The wallet, which was also introduced into evidence during trial, contained items with appellant's name on them, including a receipt from Metro PCS and a pawn ticket.

First Issue: Ineffective Assistance of Counsel

In his first issue, appellant argues that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of his counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005).² With regard to allegations of deficient performance, "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Id. (internal quotations omitted). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. Appellant claims that he was denied effective assistance of counsel because his counsel "fail[ed] to object to the admissibility of Baker's in-court identification," and therefore failed to preserve any argument about the in-court identification for appellate review. Appellant contends that his counsel should have objected to Baker's in-court identification because she had been unable to identify appellant in an earlier photo lineup. Appellant contends that without Baker's in-court identification, "the State would not have been able to positively identify Appellant at trial." In response, the State argues that appellant has not met his burden of proving that his counsel was ineffective or that the result of his trial would have been different but for his counsel's alleged error. We agree with the State. Appellant presented no evidence of his counsel's reasoning or rationale for his actions. Appellant did not file a motion for new trial or introduce any evidence relating to his counsel's reasoning. Moreover, because there is no evidence in the record of any improper pre-trial identification procedures, ³ we cannot conclude that the outcome of the trial would have been different if appellant's counsel had objected to the in-court identification. Further, Baker's identification of appellant as the man she gave a ride to was cumulative of the other evidence linking appellant to the robbery, including the matching cell phone number appellant gave to Baker and police, and appellant's wallet found in Gonzalez's truck. We conclude that appellant has not met his burden of proving by a preponderance of the evidence that his counsel was ineffective or that there is a reasonable probability the result of his trial would have been different if his counsel had objected to Baker's in-court identification. We overrule appellant's first issue.

Second Issue: Legal and Factual Insufficiency

In his second issue, appellant contends that the evidence is legally and factually insufficient to support the jury's verdict. We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). We view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. Lane, 151 S.W.3d at 191-92 (citing Jackson, 443 U.S. at 319). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Lancon v. State, 253 S.W.3d 699, 704-05 (Tex.Crim.App. 2008). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id.; Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert denied, 128 S. Ct. 282 (2007). Appellant argues that the evidence is legally insufficient because "[a]t no time during the trial was Appellant ever identified as the person responsible for robbing Gonzale[z]." Appellant argues that the evidence is factually insufficient because "[t]here was no evidence presented by the State that placed Appellant at the Conoco station on the morning that Gonzale[z's] truck was stolen." The State has the burden to prove beyond a reasonable doubt that the defendant is the person who committed the crime charged. Johnson v. State, 673 S.W.2d 190, 196 (Tex.Crim.App. 1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex.App.-Texarkana 2008, no pet.). Identity can be established through direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); Roberson v. State, 16 S.W.3d 156, 167 (Tex.App.-Austin 2000, pet. ref'd). Gonzalez testified that his truck was stolen by a man carrying a gun who appeared to have a female with him. Later that day, in an adjoining county, appellant and a female companion claimed that Gonzalez's truck belonged to them. Police found a fake gun in Gonzalez's truck, and Gonzalez found appellant's wallet in his truck. Although he claimed he had consent, appellant admitted taking Gonzalez's truck. Having reviewed the evidence under the appropriate standards, we conclude that the evidence is both legally and factually sufficient to prove that appellant was the perpetrator of the robbery. We overrule appellant's second issue.

Judgment Modification

In its brief, the State asks us to correct a clerical error in the trial court's judgment. Specifically, the State notes that the judgment lists appellant's plea and the jury finding on the enhancement paragraph as "N/A," although the record indicates that appellant pleaded true to the enhancement paragraph and the jury found the enhancement allegation "true." This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We modify the judgment to change "N/A" to "true" next to the lines reading "Plea to 1st Enhancement Paragraph" and "Findings on 1st Enhancement Paragraph."

Conclusion

We overrule appellant's two issues, modify the trial court's judgment, and affirm the trial court's judgment as modified.