No. 14-05-00194-CR
Memorandum Opinion filed February 21, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 1013220. Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
CHARLES W. SEYMORE, Justice.
Appellant, Charles Edward Taplin, appeals his conviction for aggravated robbery. In two issues, appellant contends that (1) the evidence is factually insufficient to support the jury verdict, and (2) he was denied effective assistance of counsel. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex.R.App.P. 47.4.
I. BACKGROUND
On February 7, 2003, the complainant went to a local tobacco store to purchase cigars. When he returned to his truck to leave the store, he noticed a man standing outside with a gun. Before the complainant was able to start the truck, the man opened the truck door and held the gun to the complainant's head. The complainant attempted to get out of the truck. Another man joined the ensuing struggle and grabbed the complainant's arms to keep the complainant from exiting the truck. During the struggle, the complainant fell to the ground and knocked the gun out of the first man's hands. The complainant picked up the gun and pointed it towards the truck but did not fire. The two men drove away in the complainant's truck and were followed by a car driven by a man the complainant recognized as a former neighbor. The complainant went back inside the store to call the police. He informed the police that his house keys and the remote control to his home alarm system were on the key-chain with his truck keys. His name and address were also on the insurance papers kept inside his truck. The complainant called his house several times to talk to his housekeeper, but no one answered the phone. When the police arrived at the complainant's house, they learned that the complainant's housekeeper had been assaulted and his dog had been shot and killed. The housekeeper testified that while she was cleaning the complainant's house that morning, she heard the security gate squeak and the door bell ring. A man she later identified as appellant kicked the door open. As the door swung open, it hit the housekeeper in the face. Appellant stepped inside and hit her in the head with the butt of a revolver. The complainant's dog jumped towards appellant, and appellant shot the dog in the chest. As the dog backed away, appellant shot the dog three more times. Appellant asked the housekeeper where the money was kept. When the housekeeper replied that she did not know what he was talking about, appellant threw her on the ground and told her to get in a crouched position. The housekeeper remained on the floor for the remainder of the robbery. A second man entered the house, but the housekeeper saw only his leg as he entered the door and was not able to identify the man. The second man went upstairs, and the housekeeper heard him moving around and rummaging through furniture. Appellant remained downstairs and ransacked the first floor. He kicked the housekeeper in the ribs, dropped a punching bag on her head, and stomped on her arm. Appellant also asked the housekeeper "if there was any jewelry." The housekeeper replied that the only jewelry she knew of was her wedding ring. Appellant attempted to pull the ring off her finger, but the ring became stuck and he was unsuccessful. Appellant and his accomplice left the house with two deer rifles and a carrying case containing some of the complainant's movies. The housekeeper called her husband and locked herself in her car until he arrived. The police officer that had been dispatched to the complainant's house after the initial car-jacking report arrived minutes later. The housekeeper gave a statement to the police, and was taken by ambulance to the hospital for treatment. A jury found appellant guilty of aggravated robbery and assessed punishment at twenty years' imprisonment. II. FACTUAL SUFFICIENCY
In his first issue, appellant contends that the evidence was factually insufficient to support his conviction. In reviewing the evidence for factual sufficiency, we must view the evidence in a neutral light, and must set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence may be factually insufficient if (1) the evidence supporting the verdict alone is too weak to justify a finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A. Evidence Supporting the Verdict
Appellant argues that the evidence was factually insufficient because no physical evidence was found linking appellant to the robberies and the housekeeper was the only person able to identify appellant. Appellant cites Johnson v. State in which the Criminal Court of Appeals affirmed the reversal of the defendant's conviction because the victim's "less-than-certain" identification was not factually sufficient evidence. 23 S.W.3d 1, 6 (Tex.Crim.App. 2000). However, the victim in Johnson was blindfolded during the attack and never had an unobstructed view of her attacker. See id. at 5-6. The victim was also unable to identify the defendant in a photo line-up and equivocated when identifying the defendant in court. Id. In contrast, the housekeeper testified that she had an unobstructed view of appellant's face for thirty to forty-five seconds before he threw her to the ground. She also identified appellant in both black-and-white and color photo line-ups, and testified at trial that she was "absolutely positive" of her identification. Appellant nonetheless maintains that the housekeeper's identification was not credible evidence. First, appellant notes that an officer at the scene testified that the housekeeper told him that she had not gotten a good look at the man who robbed her. However, on cross-examination, the officer admitted he previously told a district attorney that he did not remember anything about the case, and testified as he did because he felt pressured by the defense attorney. In addition, the detective administrating the photo line-ups testified that the housekeeper's identification of appellant was immediate and certain. Appellant next claims that the "unorthodox" procedure of showing the housekeeper both black-and-white and color photo line-ups casts doubt on the reliability of her identification. See Cate v. State, 124 S.W.3d 922, 928-29 (Tex.App.-Amarillo 2004, pet. ref'd) (holding that the reliability of a witness' in-court identification was relevant as related to the weight of the evidence in a factual sufficiency review when appellant did not file a motion to suppress or object to the identification). When a witness has not previously identified the defendant, the repeated inclusion of the defendant's photograph in different line-ups can be a suggestive procedure. See Cantu v. State, 738 S.W.2d 249, 251-52 (Tex.Crim.App. 1987). The reoccurrence of one particular person may suggest to the witness that the police believe that person is the culprit. Id. at 252. However, here, the housekeeper identified appellant in the first line-up that included his photograph. Therefore, because she had previously identified appellant, the subsequent inclusion of appellant's photograph in a color line-up was not suggestive and did not render her identification unreliable. See, e.g., Benitez v. State, 5 S.W.3d 915, 921-22 (Tex.App.-Amarillo 1999, pet. ref'd) (finding multiple line-ups containing different photographs of defendant not suggestive procedure). The positive identification of the defendant as the perpetrator is factually sufficient to support a conviction if the jury reasonably believes the witness. See Goodman v. State, 66 S.W.3d 283, 286-87 (Tex.Crim.App. 2001); Cate, 124 S.W.3d at 928-29. Therefore, we conclude that the State's evidence standing alone was not too weak to justify a finding of guilt beyond a reasonable doubt. B. Evidence Contrary to the Verdict
Appellant further contends that the housekeeper's testimony was outweighed by contrary evidence that appellant had an alibi for the day of the robbery. Appellant's girlfriend testified that appellant was at home the morning of the robbery until he left for work, and his employer testified that appellant was at work from 3:00 p.m. to midnight. Appellant's mother also testified that she did not see him the morning of the robbery with his cousin, the alleged accomplice. However, a verdict is not clearly wrong and unjust merely because the jury resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). The jury is the sole judge of the weight and credibility of witness testimony, and was free to reasonably believe or disbelieve all or any part of the testimony from the alibi witnesses. See Ortiz v. State, 93 S.W.3d 79, 88 (Tex.Crim.App. 2002); Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998). Here, we find that the jury could have reasonably disbelieved appellant's alibi defense. See Vasquez v. State, 67 S.W.3d 229, 236-39 (Tex.Crim.App. 2002) (finding jury could have reasonably disbelieved alibi testimony of appellant's girlfriend in factual sufficiency review); Cate, 124 S.W.3d at 928-29 (finding evidence factually sufficient based on complainant's identification despite the alibi testimony of defendant's employer and mother). Further, with respect to appellant's employer, even if the jury believed the alibi testimony, they could have nonetheless concluded that appellant committed the crime. The police arrived at the complainant's house around 1:15 p.m., thirty to forty minutes after the crime occurred. Appellant's work shift began at 3:00 p.m. Thus, there was sufficient time for appellant to commit the crime that morning and arrive for work that afternoon. See Vasquez, 67 S.W.3d at 237-38 (noting that even if the jury believed alibi testimony, it did not preclude the possibility that appellant committed the crime). Therefore, we also conclude that the contrary evidence was not so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt. Because we find the evidence factually sufficient to support the jury verdict, appellant's first issue is overruled. III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, appellant contends that he was denied effective assistance of counsel when his attorney failed to properly offer into evidence a record of appellant's working hours. At trial, appellant's supervisor testified that appellant worked from three in the afternoon to twelve o'clock midnight on the day of the robbery. However, he had not worked the same shift, and did not have personal knowledge of the time period appellant had been at work that day. Rather, his testimony was based on the records a secretary at the company had produced in response to a request from the police. On cross-examination, the prosecutor asked whether the supervisor had records to verify his statement. The supervisor did not have the record, but on redirect-examination, the defense offered into evidence a printed time card of appellant's working hours the day of the robbery. The State objected that the record was hearsay and the predicate for a business record had not been made. The objection was sustained. Appellant's attorney did not attempt to lay the appropriate predicate or offer the exhibit again. In evaluating an ineffective-assistance-of-counsel claim, we apply a two prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). First, we must determine whether the attorney's performance was deficient; i.e., that the performance fell below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687-88. If we find the attorney's performance deficient under the first prong, then we must determine whether the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Id. at 687. In other words, appellant must show a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different. Id. at 694. Appellant has failed to meet his burden under Strickland. There is a strong presumption that an attorney's performance falls within the range of reasonable assistance. Id. at 689. An isolated incident of alleged miscalculation does not necessarily render counsel ineffective, especially "when the record provides no discernible explanation of the motivation behind counsel's actions." Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Here, appellant did not file a motion for new trial, and the record is void of any information indicating why appellant's counsel abandoned his attempt to lay the proper predicate for admitting the time card. Therefore, appellant has failed to rebut the presumption that his attorney's conduct fell within the wide range of reasonably professional assistance. See id. at 814. Moreover, appellant has not shown a reasonable probability that the outcome of the trial would have been different had the time card been admitted. Appellant's supervisor testified as to the content of the time card at trial, and the subsequent admission of the time card into evidence would have been cumulative. See Madrigal Rodriguez v. State, 749 S.W.2d 576, 581 (Tex.App.-Corpus Christi 1988, pet. ref'd) (finding appellant failed to meet the second Strickland prong when trial counsel did not develop proper predicate to introduce photographs into evidence when the defendant testified about the subject of photographs in detail). Moreover, the robbery occurred in the late morning hours. Thus, the introduction into evidence of a time card proving that appellant was at work from 3:00 p.m. to midnight would not preclude a jury from concluding that appellant committed the offense. Because appellant has failed to meet both prongs of Strickland, appellant's second issue is overruled. Accordingly, the judgment of the trial court is affirmed.