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Perez v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 14, 2005
No. 05-03-01708-CR (Tex. App. Mar. 14, 2005)

Opinion

No. 05-03-01708-CR

Opinion Issued March 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 265th District Court, Dallas County, Texas, Trial Court Cause No. F03-63533-JR. Affirmed.

Before Justices WHITTINGTON, BRIDGES, and FRANCIS.


OPINION


Raul Perez appeals his aggravated robbery conviction. A jury convicted appellant and sentenced him to thirty years' confinement and a $5000 fine. In three points of error, appellant argues the evidence is factually insufficient to support his conviction, the trial court erred in charging the jury regarding parole, and he received ineffective assistance of counsel. We affirm the trial court's judgment. In his first point of error, appellant argues the evidence is factually insufficient to support his conviction. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). On January 21, 2003, Jose Sanchez was walking along a sidewalk when a black Camaro pulled up next to him. The man driving the car got out, pointed a gun at Sanchez, and demanded his wallet. A woman in the car's passenger seat remained in the car. Sanchez raised his hands and told the man his wallet was in his bag. After the man got the wallet, he drove away. Sanchez went to his apartment and called police. Sanchez gave police a description of the man, his female passenger, and the license plate number of the car. At the time it was stolen, Sanchez' wallet had $500 in it. That same day, police returned to Sanchez' apartment and took him to a gas station where he saw the man who had robbed him, the female passenger in handcuffs, and the black Camaro the man had been driving. Jon Barber testified he lived in the area where the robbery took place. On the day of the robbery, Barber saw Sanchez walking in front of his house. Barber saw a dark Camaro pull up beside Sanchez. A man got out of the car, approached Sanchez, and pulled out a pistol. Barber assumed the man demanded money from Sanchez, and he saw the man take money out of Sanchez' wallet and throw the wallet on the ground. Barber used his cell phone to contact police, and he gave them the car's license plate number and told police what had happened. At trial, Barber identified appellant as the man who robbed Sanchez. Appellant testified that, on the day of the offense, he was driving down the street when he saw Sanchez in an argument with a woman named Angie Alvarez. Though appellant did not know Alvarez, appellant stopped, and Alvarez asked him for a ride. Alvarez got in appellant's car, and they drove away. Appellant stopped at a friend's house and then a store where police arrived and arrested him and Alvarez. The record indicates neither defense counsel nor the district attorney's office was able to locate Alvarez at the time of trial to elicit her testimony. Appellant testified the first time he saw Sanchez was when Sanchez was arguing with Alvarez. Appellant had never seen Barber before trial and did not know him. The jury was free to believe Sanchez' testimony, corroborated by Barber, and disbelieve appellant's version of events. See Sharp, 707 S.W.2d at 614; McCray, 861 S.W.2d at 407. Accordingly, we conclude the evidence is factually sufficient to support appellant's conviction. See Zuniga, 144 S.W.3d at 484-85. In his second point of error, appellant argues the trial court erred in the punishment phase of trial in separating the curative admonishment from the balance of the parole instruction. Specifically, appellant argues he was egregiously harmed by the inclusion of the following sentence before the last paragraph of the statutorily-mandated parole instruction: "Evidence presented by the State in the punishment phase of the trial must be proven beyond a reasonable doubt." See Tex. Code Crim. Proc. Ann. art. 37.07 § 4 (Vernon Supp. Pamph. 2004-05). Appellant argues the placement of this sentence severed the curative admonishment found in the last paragraph of the statutorily-mandated parole instruction from the rest of the parole charge, effectively encouraging the jury to apply the parole law to appellant in considering his sentence. Appellant failed to object to the jury charge at trial. Where a defendant fails to object to a jury charge on a constitutional violation basis, he waives the heightened harm analysis provided for reviewing constitutional errors. See Jimenez v. State, 32 S.W.3d 233, 237-38 (Tex.Crim.App. 2000). Because he failed to preserve jury charge error, we may reverse only if the record demonstrates he suffered egregious harm. See id; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). In determining the degree of harm suffered, we look to the entire jury charge, the evidence, including contested and probative evidence, counsel's arguments, and any other relevant information. See Almanza, 686 S.W.2d at 171. Here, the jury charge contained the entire statutorily-mandated parole instruction, with the addition of a single sentence stating that the State's evidence presented at punishment must be proven beyond a reasonable doubt. The State may offer evidence of extraneous offenses during the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. Pamph. 2004-05). The trial court must charge the jury that it can only consider such evidence if it finds beyond a reasonable doubt that the defendant committed the offenses. Huizar v. State, 12 S.W.3d 479, 483-84 (Tex.Crim.App. 2000). The trial court here included a reasonable doubt instruction both in the paragraph referring to extraneous crimes and in the section of the charge containing the statutorily-mandated parole instruction. We do not agree that the inclusion of a single sentence reiterating the requirement that the State's evidence at punishment must be proven beyond a reasonable doubt somehow severed the curative admonishment in the final paragraph of the statutorily-mandated parole instruction. Under these circumstances, we cannot conclude that appellant suffered egregious harm. See Jimenez, 32 S.W.3d at 237-38; Almanza, 686 S.W.2d at 171. We overrule appellant's second point of error. In his third point of error, appellant argues he received ineffective assistance of counsel. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. Appellant argues trial counsel was ineffective in failing to challenge the admissibility of appellant's extraneous offenses, request oral instructions to limit the jury's use of extraneous offenses, or request written reasonable doubt instructions regarding the extraneous offenses at guilt-innocence. Further, he argues the extraneous offenses were not admissible under rule of evidence 404(b), and counsel should have challenged their admissibility on that basis. The record shows appellant testified on direct during guilt-innocence that he had committed robbery and had been convicted of burglary and evading arrest. Generally, a defendant who testifies may be impeached as any other witness may be impeached. Moreno v. State, 22 S.W.3d 482, 485 (Tex.Crim.App. 1999). Under rule of evidence 609, for the purpose of attacking the credibility of a witness, evidence that a person was convicted of a crime shall be admissible if the prior conviction was a felony or a misdemeanor involving moral turpitude and the court determines the probative value of admitting the prior conviction outweighs its prejudicial effect. Tex. R. Evid. 609(a). In the jury charge at guilt-innocence, the trial court instructed the jury that appellant's having been charged and convicted of offenses other than the charged offense could not be considered as any evidence of guilt in the charged offense. The instruction limited the jury to using the extraneous offenses in passing upon the weight to give appellant's testimony. The charge at guilt innocence then required the jury to find appellant committed the charged offense beyond a reasonable doubt before finding him guilty. Appellant has failed to rebut the presumption that it was a reasonable decision for trial counsel to elicit appellant's testimony concerning the extraneous offenses, committed when appellant was "young and really stupid" and arguably admissible under rule 609(a). See Tex. R. Evid. 609(a); Thompson, 9 S.W.3d at 814. Similarly, the record is silent as to trial counsel's strategy. Under these circumstances, we cannot conclude a reasonable probability exists that, but for trial counsel's failure to act, the result in this case would have been different. See Strickland, 466 U.S. at 687-88, 694. Accordingly, appellant did not receive ineffective assistance of counsel. We overrule appellant's third point of error. We affirm the trial court's judgment.


Summaries of

Perez v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 14, 2005
No. 05-03-01708-CR (Tex. App. Mar. 14, 2005)
Case details for

Perez v. State

Case Details

Full title:RAUL PEREZ, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Mar 14, 2005

Citations

No. 05-03-01708-CR (Tex. App. Mar. 14, 2005)