Opinion
Nos. 05-09-00161-CR, 05-09-00162-CR
Opinion issued June 24, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F08-53469-NP and F08-53470-NP.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
OPINION
A jury convicted Jeremy Bernard Smith of two charges of aggravated robbery and assessed his sentence at twenty-eight years' imprisonment in each case. On appeal, Smith contends the trial court erred by refusing to replace his appointed counsel and by making unsupported deadly weapon findings in both judgments. Smith also argues the evidence is factually insufficient to support his convictions and that the prosecutor impermissibly commented on Smith's failure to testify in the punishment phase of the trial. We affirm the trial court's judgments.
Background
At approximately 9:15 p.m. on March 28, 2008, brothers Jose and Juan Garcia were working on Juan's truck in the parking lot of the apartments where they both lived. They were approached by a young man-later identified as Ontario King-who asked if the brothers "knew where they sell drugs." When they said they did not, he walked on. But almost immediately King turned and approached the brothers again. As he reached the spot where the brothers were working, he pointed a gun at Jose's back and then pulled a mask down over his face. He began to go through Jose's pockets, taking Jose's cell phone, billfold, and keys. At the same time, a second man had approached the brothers, and he held a gun on Juan. The second man was larger in build than King; he wore gray coveralls and his face was covered by a mask. The second man took Juan's cell phone, billfold, and keys from his pockets. Then the two robbers fled together. Jose and Juan saw the men drop keys and items from the billfolds as they ran away. The brothers told Jose's wife to call the police, and they got into Jose's truck to try and find the men. They flagged down a police car entering the apartment parking lot, and the police and the brothers began to search the lot on foot. The group was picking up items that had been discarded by the robbers when the officer's flashlight shone on a car parked in the lot nearby. King and Smith were sitting inside the car, with their seats reclined. The brothers identified the two as the robbers; the officers ordered the men out of the car, arrested them, and searched them and the car. Smith had $597 in his pocket. The officer who searched the car found two handguns, two ski masks, and ammunition stashed under the back seat of the car. He found Jose's Ford Mustang key, which Jose kept in his billfold. The officers also recovered Juan's broken cell phone and an unusual two-dollar bill, which matched one Juan kept in his billfold. Smith was charged with aggravated robbery of both Jose and Juan. Smith acknowledged at trial that he had been present in the car with King that night and that they had driven to the apartments to buy drugs. But Smith testified he did not know anything about the robberies or about how the guns, ski masks, or stolen items got into the car. He denied getting out of the car after arriving at the apartments, and he denied approaching anyone with a gun or encountering the Garcia brothers in any fashion. The jury found Smith guilty of both robberies and assessed punishment at twenty-eight years' imprisonment for each offense. Smith appeals.Appointment of Substitute Counsel
In his first issue, Smith claims the trial court erred by not appointing substitute counsel to replace his trial counsel. On the day trial was scheduled to begin, Smith's counsel made a record concerning whether Smith wanted to proceed to trial or with an open plea before the court. Smith responded, "I mean, I really need to — I don't want to — I ain't trying to go through neither one of them right now." When his counsel told him he had to go through with either the plea or the trial, Smith began asking if he could get "some type of further investigation on this." Smith agreed he had not given his lawyer any information about possible witnesses to subpoena. He had repeatedly told the lawyer he did not know anything; the lawyer stated he was left to "take the reports [the prosecutor] gave to me, his witnesses and make a defense." Smith then asked if there was any way he could get a further investigation by another lawyer. When asked to explain what it was he wanted investigated, Smith answered:I mean, I want the whole thing really to be investigated for the simple fact that a lot of the stuff that was being said, like I told you when you talked to me, I was — I don't remember none of that happening. I was — I don't remember none of that happening. I was waiting on some more drugs coming in, that's what it was. . . . I'm asking [the judge] can I have — can I have the opportunity to get another lawyer? The trial judge assured Smith she had appointed a very capable lawyer, and she refused to replace him.A defendant has no right to appointed counsel of his choice. Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977). The defendant must accept counsel assigned by the court unless he effectively waives his right to counsel or shows adequate cause for appointment of a different attorney. Id. The trial court is under no duty to search for counsel until it finds one agreeable to the defendant. Rogers v. State, 488 S.W.2d 833, 834 (Tex. Crim. App. 1973). Instead, the defendant bears the burden of proving he is entitled to a change of counsel. Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985). The defendant may not request a change in counsel to obstruct the orderly procedure of the court or to interfere with the fair administration of justice. Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991). "[P]ersonality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal." King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). We review the trial court's decision for an abuse of discretion. See id. In this case, Smith did not establish his entitlement to different counsel. In fact, he did not raise a serious issue concerning his sole complaint, i.e., that his attorney had failed to investigate the case. Instead, the record establishes only that Smith did not assist his attorney in any way with an investigation of the case. As a result, his attorney had to rely entirely on materials from the State to provide Smith's defense. Nothing in the record suggests his attorney did not make an appropriate investigation, given the materials reasonably at his disposal. Smith's acknowledgment that he was on the scene of the robberies "waiting on some more drugs coming in," and that he could not remember anything about any robberies that night, gave the trial court no reason to believe another lawyer would be able to conduct more of an investigation on Smith's behalf. Finally, Smith made this request only after he was required to choose between proceeding with an open plea and commencing trial. We discern no abuse of discretion in the trial court's denial of his last-minute request for new counsel.
Factual Sufficiency of the Evidence
In his second and third issues, Smith argues the evidence is factually insufficient to support his convictions. Specifically, Smith contends he could not have been sufficiently identified as the masked robber because the Garcias never saw that robber's face. Instead, according to Smith, he was identified as the masked robber merely by virtue of his presence at the scene. 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. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). 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. Roberts, 220 S.W.3d at 524. The identity of the perpetrator of an offense can be proved by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). The Garcias saw the face of Ontario King when he approached them the first time about buying drugs and when he approached them the second time to rob them; King pulled a ski mask over his face only after he reached the Garcias. Thus, there was no question they could identify King as one of the two men who robbed them. Although the man who accompanied King wore a ski mask pulled down over his face throughout the robberies, the Garcias could see his eyes, his build, and his clothes. They described him as a bigger man than King, and they agreed he was wearing grey coveralls. Both King and the masked robber displayed handguns during the robberies. Afterward, King and the masked robber fled together. Then, in relatively short order, King was discovered inside a vehicle in the parking lot at the same apartments where the Garcias were robbed. Smith was with King in the vehicle; Smith had the same build as the masked robber and was wearing grey coveralls. Moreover, inside the car where the two men were sitting, the police found two ski masks, two handguns, ammunition, and property stolen from the Garcias. The only evidence contrary to the verdict on this issue is Smith's own testimony that he was sitting in the car with King, waiting to buy some drugs, and had no idea how materials from the robberies came to be in the car. Viewing all the evidence in a neutral light, we conclude there was ample evidence that Smith was in fact the masked robber. We overrule his second and third issues.Deadly Weapon Finding
In his fourth and fifth issues, Smith argues the trial court erred by including an affirmative finding of the use of a deadly weapon in both judgments when the jury made no such finding in its verdict. He argues that if the jury intended to find Smith guilty of either offense only as a party, rather than as a primary actor, then the jury would have to find specifically that Smith used or exhibited a deadly weapon or knew that one would be used or exhibited. See Barnes v. State, 62 S.W.3d 288, 303-04 (Tex. App.-Austin 2001, pet ref'd). But if the use of a deadly weapon is an element of the charged offense and is alleged in the indictment, and the jury finds the defendant guilty as alleged in the indictment, then that finding necessarily supports the entry of an affirmative finding of the use or exhibition of a deadly weapon in the judgment. Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). Here Smith was charged with the aggravated robberies of Jose Garcia and Juan Garcia. Both indictments include the specific charge that "defendant did then and there use and exhibit a deadly weapon, to-wit: a FIREARM." Thus-regardless of whether the jurors intended to find Smith guilt as a primary actor or a party-they had to believe beyond a reasonable doubt that he used or exhibited a firearm. See id. We overrule Smith's fourth and fifth issues.Comment on Defendant's Failure to Testify
In his sixth and seventh issues, Smith contends the prosecutor impermissibly commented on Smith's failure to testify during the penalty phase of his trial. Specifically, Smith complains about the following argument made by the State in its closing argument:Now, he wants you to think this [is] about him. You saw the tears that came from that guy when he heard from his mom and his aunt. And I don't discount the fact that this is hard for them, it's hard for them to sit up on this witness stand and be going through this. But remember, it's not about him. I didn't see any tears coming from him when you heard from all of those victims that had these guns pointed up to their face. There were not any tears when they were up there. The only tears is when it was about him.According to Smith, this argument focused the jury's attention on the absence of evidence that only Smith could supply: contrition or remorse. We need not decide whether the State's argument actually commented on Smith's failure to testify, because he did not object to the argument in the trial court. Smith's failure to object to this argument below forfeited his right to complain about it on appeal. Ladd v. State, 3 S.W.3d 547, 569 (Tex. Crim. App. 1999) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)). Smith acknowledges this settled rule of law. Nevertheless, he urges us to ignore the rule and declare that a comment on the defendant's failure to testify violates a fundamental right, which cannot be waived by procedural default. We are not free to disregard the pronouncements of the Court of Criminal Appeals. Smith's sixth and seventh issues are without merit.