Opinion
No. 05-04-01633-CR
Opinion issued June 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th District Court, Dallas County, Texas, Trial Court Cause No. F03-18221-HN. Affirmed.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
OPINION
Brian Bernard Steen appeals his aggravated robbery conviction. The jury convicted appellant, and the trial court sentenced him to eight years' confinement. In five issues, appellant argues the evidence is legally and factually insufficient to support his conviction, he received ineffective assistance of counsel, and the trial court erred in allowing the State to amend the indictment and charging the jury on a theory not alleged in the indictment. We affirm the trial court's judgment. On January 4, 2003, Chris Chambers was walking from his car to a restaurant when he "noticed a lot of boys looking at" him. Chambers was hit from behind and fell. While Chambers was on the ground, he was "stomped," kicked in the back, and injured so that he required stitches over his eye. His assailant took Chambers' car keys, his phone, and $35 from him. Chambers made an initial report to police regarding the robbery, and he was taken by ambulance to the hospital. Cedar Hill police officer Victor Vasquez was assigned to the case and subsequently interviewed Chambers. Chambers' mother gave Vasquez a videotape of the robbery. According to Chambers' mother, someone had given her the tape anonymously. Vasquez took the videotape and showed it to school officials at various high schools in the area. In the course of his interviews, Vasquez was able to identify appellant as one of the men shown beating Chambers in the video. Vasquez obtained a warrant for appellant's arrest and arrested him, interviewed him, and obtained a written statement from him. At the conclusion of his subsequent trial, the jury convicted appellant of aggravated robbery, and this appeal followed. In his first and second issues, appellant argues the evidence is legally and factually insufficient to support his conviction. Specifically, appellant argues the videotape of the attack on Chambers does not show appellant hitting or kicking Chambers, two witnesses testified they did not see appellant attack Chambers, and Chambers himself did not identify appellant at trial as one of his attackers. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. 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. 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). A person commits aggravated robbery if, in the course of committing theft and with intent to obtain and maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another and, during the commission of the offense, uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(1), 29.03(a)(2) (Vernon 2003). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if, acting with 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). Here, appellant's written statement indicated he was present at the attack on Chambers and "seen a phone on the ground" and went to try to get it. The videotape of the attack shows appellant rushing toward Chambers as Chambers lay on the ground, stooping to put his hands on Chambers with an indeterminate amount of force, and retrieving what appears to be a phone from the ground near Chambers' crumpled form. At the same time, the videotape shows multiple other young men hitting and kicking Chambers and jumping on Chambers' head as he lies helpless on the ground. In the videotape, appellant does nothing to attempt to stop the attack and appears to be actively assaulting Chambers, at least with his hands. At the very least, the videotape is sufficient to show appellant was guilty as a party to hitting and kicking Chambers and stealing his phone. See Tex. Pen. Code Ann. §§ 7.01(a), 7.02(a)(2), 29.02(a)(1), 29.03(a)(2) (Vernon 2003). Under these circumstances, we conclude the evidence was legally and factually sufficient to support appellant's aggravated robbery conviction as a party to the offense. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first and second issues. In his third issue, appellant argues he received ineffective assistance of counsel. Specifically, appellant argues his trial counsel was ineffective in failing to object to the admission of the videotape showing the attack on Chambers. 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. Here, the record is silent as to trial counsel's reasons for not objecting to the admission of the videotape. Therefore, appellant has failed to rebut the presumption that his counsel provided reasonable assistance. See Thompson, 9 S.W.3d at 814; Strickland, 466 U.S. at 687-88, 694. Further, the videotape does not show appellant himself jumping on Chambers' head, kicking him, or conclusively striking Chambers with a hand. Thus, it may have been trial counsel's strategy to use the videotape for appellant's defense. Under these circumstances, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's third issue. In his fourth and fifth issues, appellant complains the trial court erred in permitting the State to "amend the indictment," and this error resulted in the jury being charged on a theory not alleged in the indictment. An amendment is an alteration to the face of the charging instrument which affects the substance of the charging instrument. Moore v. State, 54 S.W.3d 529, 546 (Tex.App.-Fort Worth 2001, pet. ref'd). Conversely, an abandonment does not affect its substance. Id. There are three situations where an alteration to the face of the charging instrument is an abandonment: (1) abandonment of one or more of the alternative means of committing an offense, (2) abandonment of an allegation if the effect is to reduce the prosecution to a lesser included offense, or (3) abandonment of surplusage. Id. at 546-47. When a statute provides multiple means for the commission of an offense and those means are subject to the same punishment, the State may plead them conjunctively. Id. at 547. However, the State is required to prove only one of the alleged means in order to support the conviction. Id. The abandonment of an alternative means does not change the alleged offense, it merely limits the State to the remaining means. Id. Here, the indictment alleged, in part, that appellant struck Chambers with "defendant's hand" and stomped Chambers with "defendant's foot." At trial, pursuant to a request from the State, the jury charge did not contain the word "defendant's." Instead, the charge authorized the jury to convict if it found that appellant, acting alone or as a party, struck Chambers with "a hand" or stomped Chambers with "a foot." As discussed previously, the evidence is sufficient to show appellant was guilty as a party to hitting and kicking Chambers and stealing his phone. See Tex. Pen. Code Ann. §§ 7.01(a), 7.02(a)(2), 29.02(a)(1), 29.03(a)(2) (Vernon 2003). We conclude the deletion of the reference to "defendant's" hand and foot merely deleted one of the alternative means of committing the charged offense and was therefore an abandonment, not an amendment. See Moore, 54 S.W.3d at 547. Thus, the requirements of articles 28.10 and 28.11 of the code of criminal procedure relating to the amendment of indictments were not triggered. Id. Accordingly, the trial court did not err in permitting the State to charge the jury without reference to "defendant's" hand or foot. Further, the charge contained in the indictment and the court's charge to the jury both permitted conviction of appellant alone or as a party, and the charge did not permit conviction on a theory not alleged in the indictment. We overrule appellant's fourth and fifth issues. We affirm the trial court's judgment.