Opinion
No. 05-03-00196-CR
Opinion issued July 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause No. F02-47390-SU. Affirmed.
Before Justices WHITTINGTON, LANG and LANG-MIERS.
OPINION
Appellant Calvin Ray Allen appeals his conviction for aggravated robbery for which he was assessed punishment at forty years in prison. In ten issues appellant complains of legal and factual insufficiency of the evidence, charge error, ineffective assistance of counsel, erroneous admission of evidence, and erroneous denial of his motion to suppress his confession. We affirm.
BACKGROUND
Jesus Cervantes owns a tire shop called Wheels and Relateds. On the evening in question, Cervantes, his brother-in-law Jorge Reyes, and a machine service man named Randel Edwards were present in the tire shop when a white Caprice drove into the bay. Three black males left the vehicle and proceeded to rob Cervantes, Reyes and Edwards. In the process, Cervantes was hit in the head with a gun, and was stabbed in the shoulder and back. Edwards was beaten with a crowbar. The three men drove away from the tire shop, but because the police were given a description of the car, they were soon apprehended. When appellant was taken to the police station, he gave a statement to the effect that he and his two friends saw Cervantes and decided to "strong arm" him. He admitted that when they went into the shop, he began fighting with one of the men. Appellant denied any prior knowledge of the presence of firearms.SUFFICIENCY OF THE EVIDENCE
Legal Sufficiency In his second, fourth and sixth issues, appellant claims that the evidence is legally insufficient to support the verdict. The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). A person commits aggravated robbery if he, in the course of committing theft and with intent to obtain or maintain control of the property of another, intentionally, knowingly, or recklessly causes bodily injury while using or exhibiting a deadly weapon. Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 1993). Under the law of parties, 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 1993). The evidence is legally sufficient to convict under the law of parties where the accused is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994). In determining whether appellant participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of appellant that show an understanding and common design to do the prohibited act. Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985). Participation in the offense may be inferred from circumstantial evidence and need not be shown by direct evidence. Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987). If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Tex. Pen. Code Ann. § 7.02(b) (Vernon 1993). The term "conspiracy" is defined as an agreement between two or more persons, with intent that a felony be committed, that they, or one or more of them, engage in conduct that would constitute the offense. Tex. Pen. Code Ann. § 15.02(a) (Vernon 1993). An agreement constituting a conspiracy may be inferred from acts of the parties. Tex. Pen. Code Ann. § 15.02(b) (Vernon 1993).Evidence
In his second issue, appellant complains that the evidence is legally insufficient to prove that appellant is guilty of aggravated robbery, either as a party or a conspirator. In his fourth issue, appellant contends that the evidence is legally insufficient to support a finding that appellant used or exhibited a deadly weapon, a tire iron or crowbar. And in his sixth issue, appellant complains that there is no evidence showing he should have anticipated a deadly weapon would be used in the course of the robbery. Cervantes testified that he, Reyes, and Edwards were present when a white four-door Chevrolet Caprice drove into the bay of the tire shop. Three black males left the vehicle. One of them asked Cervantes if he could break a $100 bill and handed it to him. As Cervantes was examining the money, the man pulled a gun and pointed it at his chest. He ordered Cervantes to "give me the money." Cervantes grabbed the gun and started fighting for it. They fell on the floor and continued struggling. The man hit Cervantes on the head with the gun, and stabbed him on the shoulder and back. He robbed Cervantes of $2,200.00. Cervantes identified a picture of his brother-in-law Reyes, and stated that Reyes had returned to Mexico very soon after the robbery and had not returned to this country. Edwards testified that when he walked into the shop to repair a tire-changing machine, he saw three men in the office, along with Cervantes and Reyes. He walked by the office back to the machine, sat down and was putting a part on the machine when he was attacked. The man jumped on him and pinned him to the floor. He fought back and tried to get away, but was unsuccessful. When Edwards tried to stab his attacker with a screwdriver, the man reached up on a shelf and got a crowbar. He started beating Edwards with it and Edwards went limp. The next thing he knew, his attacker pulled him up off the floor and dragged him into a bathroom or a closet. On the way, he saw another man on top of Cervantes beating him in the face with a pistol. When Edwards got to the closet, he was "stuffed in there face down." While lying there, he feared he was going to die. He thought he heard some gunshots, but was not sure. He did hear sirens, and his next recollection was of getting in the ambulance. Because of the beating he received, Edwards spent five days in the hospital with compressed skull fractures. He also lost part of an ear as a result of his injuries. Edwards testified that his attacker took his wallet, which contained approximately $120.00. Officer Monahan received a dispatch for a robbery in progress. When he arrived at the tire shop, he observed two men sitting outside the shop. One of the men, Cervantes, was bleeding from his head. Reyes had no visible injuries. The victims gave Monahan a description of the vehicle used in the robbery and the officer broadcast it over the police radio. He also gave the direction the vehicle was thought to be traveling and informed those listening that the suspects were three black males dressed in black. An ambulance had already been called by the time Monahan arrived at the scene of the robbery. When the ambulance arrived, the officer entered the garage and found Edwards lying on the floor, face down in a puddle of his own blood. Officer St. Clair responded to the dispatch and was traveling toward the tire shop when he observed a vehicle that matched the description given by Monahan. St. Clair and his partner began following the vehicle which drove at a normal rate of speed for six or seven blocks. The officers never lost sight of the Caprice. St. Clair turned on his emergency lights and the car slowed and eventually stopped. Three black males got out of the white Caprice and began running. The men were all wearing dark clothes and hooded sweatshirts. One had a gun in his hand, and two had clothing and money in their hands. The officers followed in their police car until it was no longer possible to do so, at which time they got out of their car and continued the chase on foot. The three suspects eventually split up, with two heading south and one heading north. The officers followed the man heading north. They lost sight of the suspect for approximately 30 seconds to one minute when he ran between some houses. Then St. Clair heard someone say "over here, over here," and saw that it was the man they were chasing. When the officers turned the flashlight on him, the suspect started running again, at which time the officers pursued and tackled him. St. Clair testified that the man, who he identified in court as appellant, had cuts, scratches and blood on his hands when he was arrested. Officer Sigala, St. Clair's partner, stated that he did a pat-down of appellant and found $317.00 crammed in his right front pant's pocket. Officer Junger was the police supervisor assigned to the robbery in progress. While on the way to the tire shop, he heard that fellow police officers were involved in a foot chase with three suspects. He saw two black males dressed in black walking southbound. Seeing Junger's police car, the two suspects began running. Junger followed on foot and saw one of the men get tangled up in a dog chain, at which time another officer apprehended him. Junger continued following the other man still on the run. He eventually caught and arrested the man, who he identified at trial as Timothy Williamson. Williamson had blood on his hands when he was apprehended. Officer Ortiz testified that he was en route to the tire shop when he heard that fellow officers were on foot chasing the three suspects. He and his partner, Officer Castro, saw two men matching the description of the suspects run across the street in front of his squad car. Ortiz followed for as long as possible in the car, then began chasing the men on foot. Castro chased the man who got tangled up in a dog chain. Ortiz chased the other man, Williamson, through yards, and he and Junger eventually caught him. Officer Fogg, who filled out the book-in sheet and did a pat down of Williamson after he was returned to the tire shop by other officers, testified that he found $350.00 wadded up in the suspect's front left pocket and $208.00 folded in his wallet. Fogg also noticed that Williamson had blood on his shirt, pants and hands. Castro testified that he followed a suspect and saw him drop a silver handgun along a fence line as he was running through yards. The suspect, who Castro identified as Corey Coleman, tripped over a dog chain and Castro took him into custody. Coleman had money hanging out of his front sweater pocket at the time of the arrest. Officer Strauss heard that two officers were on foot chasing the robbery suspects. When he went to that area, he saw a white 4-door Chevrolet Caprice abandoned in the roadway with the motor running. Three of the vehicle's doors were open. Strauss shined his flashlight into the car and saw a pistol, a crowbar and a brass shell casing from an automatic pistol. He discovered a black wallet in the grass about ten feet from the car. He knew that it had been dropped recently because the grass was covered in dew, but the wallet was not. Strauss secured the perimeter and waited for the Physical Evidence Department to arrive. Detective Williams testified that he was a fingerprint expert. When he took prints from the vehicle involved in the robbery, he matched three prints with those of appellant. There were two below the driver's window on the exterior of the driver's door and there was a left palm print on the roof above the passenger door in the back. He found a Winchester 9 mm Luger cartridge casing on the front passenger floorboard. He also discovered a blood-stained tire iron. Beneath the driver's seat was a blue steel Smith Wesson with a 4-in. barrel. It contained five live rounds. Laying in the grass on the east side of the roadway was a black Adidas wallet belonging to Jorge Medina. Just north of that location was a $20.00 bill. Williams testified that Officer Castro recovered a silver bloodstained 9 mm Baretta with a four-in. barrel when he was chasing a suspect. The gun contained live rounds. When asked if the tire iron or crow bar was a deadly weapon, Williams replied, "it could be, yes." Katherine Long, a forensic scientist, testified that she received a revolver, a pistol and a tire iron from the robbery in question. She collected buccal (mouth) swabs from Coleman, Allen, Williamson, Edwards and Cervantes. She looked for the presence of blood on all items. On the semi-automatic pistol, she found Cervantes' blood on the grip, the front sight, and the trigger guard. On the crooked end of the tire iron, she identified blood consistent with Edwards, with some blood identified from Cervantes. Cervantes and Edwards' blood was on the handle end of the tire iron. Long was not able to identify any blood on the revolver. Dustin Engel, a firearm and toolmark examiner with the Dallas County Crime Lab testified that both the revolver and the pistol were mechanically functional. The fired cartridge case was from the pistol, the semi-automatic Baretta. Officer Swain testified that on the evening of the robbery, appellant was brought to his office for an interview. Swain took appellant into a small interview room and advised him of his Miranda rights. Appellant told him he understood his rights and that he wanted to talk about the robbery. Appellant's statement follows in toto:My name is Calvin Allen. I can read and write the English language. I am giving the statement to Det. M.R. Swain 5215, and he is writing it for me. Earlier today, I was at Trons house, when Timothy came and picked us up around one o'clock. We went to get something to eat and then by the grocery store. We went back to Trons house and sat around for awhile. We then left again and drove to Oak Cliff. We went from Oak Cliff to my cleaners to pick up some clothes. My cleaners is on Buckner near the tire store. We left the cleaners and were talking about our hard times. We passed the tire shop and saw only one guy standing by the door, like he was getting ready to close. We decided spur of the minute, to strong arm this guy. We made a U-turn and pulled in the parking lot. We got out and looked at the rims that were outside, to try and catch him off guard. We then pushed the guy in the store and realized there were two more people in the store. I started fighting with one guy and Timothy and Tron were with the other guys. Some time during this, Tron pulled the car into the work area and pulled down the bay door. Right after this, the fight was over and we left. The police got on us really quick. We stopped the car somewhere near Prairie Creek. I got out and ran, but gave myself up after a while. During the fight at the store, things started going bad and I asked the guy to let me go and I would let him go, but he wouldn't. I've known Tron for one month. I know his first name as Corey. I didn't know that any guns were going to be used until after they were brought out because this was supposed to be a strong arm.Analysis Appellant, Williamson, and Coleman agreed to rob the person or persons at Wheels and Relateds. Appellant, in an attempt to commit robbery, engaged in a fight with at least one of those people. During the course of the robbery, Edwards was beaten with a tire iron or crowbar, and his money was stolen. Edwards testified that during the attack he stabbed his assailant with a screwdriver, which would have caused a puncture wound. A photo of appellant's hand may have shown that he had suffered from a puncture wound. It also showed that Appellant's hands were bloody. Appellant, Williamson, and Coleman, three men matching the description of the robbers, drove away from the tire shop in the same car in which they had arrived. A car of that same description was stopped by police. Three men matching the description of the robbers jumped out of the car and attempted to elude police. A billfold belonging to a victim was found near the abandoned vehicle. A crowbar covered in blood was found in that car. Coleman was apprehended with a firearm, and another gun was discovered in the getaway car. Appellant was found with over $300.00 stuffed into his pocket. Williamson and Coleman were also in possession of a great deal of cash. Appellant stated that the guns belonged to his friends. We hold that the evidence is legally sufficient to support the jury's finding that appellant, Williamson, and Coleman entered into an agreement to commit a robbery. The evidence is legally sufficient to support the jury's finding that appellant should have anticipated a deadly weapon would be used because there were two guns in the car in which appellant had been riding for most of the day, and although the conspirators agreed they were going to do a "strong arm" robbery, it was reasonably foreseeable that the robbery victim might fight back and that an item found on the premises could and would be used as a weapon. The evidence is legally sufficient to support a finding that in the course of the robbery, one of the conspirators assaulted Edwards with a crowbar, a deadly weapon, and that one of the conspirators threatened Cervantes with a gun, a deadly weapon. The evidence is also legally sufficient to support a finding that it was appellant who beat Edwards with the crowbar. We decide against appellant as to issues two and four and the legal sufficiency complaint in issue six.
Factual Sufficiency
In his third, fifth and sixth issues, appellant complains that the evidence is not factually sufficient to support the verdict. 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, No. 539-02, 2004 Tex.Crim. App. LEXIS 668, at * 20 (Tex.Crim.App. April 21, 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 fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000).Evidence
Along with the evidence cited in our legal sufficiency review, the following information was also before the jury. Cervantes testified that he did not get a good look at the two men who attacked Reyes and Edwards. But he did know that appellant was not the man who attacked him. When Edwards was on the stand, appellant was told to stand up and Edwards was asked if he was the man who beat him. Edwards said, "I can't say for sure if it is or isn't. I mean, could be. I don't think it is. I don't know. I mean I was beat in the head." Edwards also admitted that he told a defense attorney before trial that appellant was not the man who attacked him. St. Clair testified that he did not find any weapons on appellant, nor did he see appellant discard any weapons. Sigala stated that he did not recall seeing blood on the money found in appellant's pocket. He also testified that when he was chasing appellant, he lost sight of him for about five minutes (as opposed to the 30 seconds to a minute testified to by Sigala's partner). Williams testified that he did not find any fingerprints on the wallet or the $20.00 bill. He did not try to get fingerprints off the crowbar or the guns. Williams could not tell when the prints were left on the outside of the car. He dusted the interior of the car for prints, but none were identifiable. He did not run the registration on the car to determine the owner. He conducted handwashings of the three suspects to determine if any of them had fired a weapon recently, but he did not know the results. Long testified that she received two sets of clothing for DNA testing. They belonged to Williamson and Coleman. She did not receive any clothing identified as belonging to appellant. She admitted that she did not identify DNA from any of the suspects on anything that she tested. Long explained, however, that the blood from the victims would have masked any DNA deposited on the items by anyone who handled them. Tuwonda Allen, appellant's wife, testified that they had received a tax refund, and that she had given $300.00 of it in cash to appellant. She asserted that appellant never carried a wallet, but that he normally crammed his money in a front pants pocket. At the time of the incident, appellant was working for Wilsons installing office furniture and moving offices. He had been there for about a year and he made a decent income. They were not in any real need of money.Analysis
Appellant agreed to participate in a robbery with Williamson and Coleman. He admitted that he did, in fact, participate in that robbery. When one decides to steal property from another, he should anticipate that he or his co-conspirators might be confronted by that individual and that his co-conspirators might react violently to that confrontation. See Moore v. State, 24 S.W.3d 444, 447 (Tex.App.-Texarkana 2000, pet. ref'd). It is further probable that the co-conspirators might arm themselves with items or weapons found where the robbery takes place. Id. Edwards testified that this exact scenario occurred when his attacker grabbed a crowbar or tire iron from a shelf and beat him with it. A police officer testified that a tire iron or crowbar could be used as a deadly weapon. And the undisputed evidence is that the tire iron or crowbar was, in fact, used to inflict serious bodily injury upon Edwards. Although appellant was not identified as the person who beat Edwards, it was undisputed that appellant had blood on his hands after the robbery, and no one saw appellant injure his hands during the chase. The jury saw a picture of the injuries to appellant's hands, and it was within their province as factfinders to determine that one of the injuries was a puncture wound that looked to have been caused by a screwdriver. Consequently, there is ample evidence from which a jury could reason that appellant was part of a conspiracy to commit robbery, that during the commission of that crime, Williamson, Coleman, or appellant himself used a deadly weapon against Edwards, and that the conduct was both part of the robbery and a result that could be anticipated. The evidence supporting the verdict, considered by itself, is not too weak to support the finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the beyond-a-reasonable doubt standard could not have been met. We hold that 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. We decide issues three, five and six against appellant.DISCHARGE OF "DISABLED" JUROR
In his first issue on appeal, appellant complains that the trial court erred when it discharged a juror after she was sworn in and the trial had already begun, which allowed eleven jurors to return a verdict against him. Appellant contends that there is insufficient evidence to establish that the juror was inhibited from "fully and fairly" performing her functions as a juror. To support his position, he argues that the juror's "disability" was a pre-existing condition. A juror may be discharged and eleven jurors may render a verdict in a felony trial if the discharged juror is disabled. Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2004). The verdict may only be rendered on a vote of eleven jurors, however, if the disabled juror is discharged before the charge is read to the jury. Id. It is within the trial court's discretion to determine if a juror suffers from a disability sufficiently serious to discharge him from duty. Landrum v. State, 788 S.W.2d 577, 579 (Tex.Crim.App. 1990). However, the trial court's power to discharge a juror for a disability is limited to those instances where there exists some physical illness, mental condition, or emotional state that hinders her ability to perform her duties as a juror. Hill v. State, 90 S.W.3d 308, 315 (Tex.Crim.App. 2002). During voir dire, the following exchange occurred between the court and the potential juror in question:[VENIREPERSON]: I have arthritis in my back and knees. I can't — I can't sit for an hour and a half.
[COURT]: If you sit for an hour and a half — if we take breaks —
[VENIREPERSON]: If I can stretch enough. Sitting kills it.The venireperson was selected to sit on the jury. During the first day of testimony, she approached the court with her concerns, as follows:
[COURT]: Mrs. Silvas, could you step up here, please. How are you today?
[JUROR]: Hurting
[COURT]: I understand that you indicated to the bailiff that you had a problem that hindered you from sitting?
[JUROR]: I told you yesterday I can't sit for more than an hour at a time.
[COURT]: You didn't tell us you had to stand up for an hour and a half after that. You did tell the Court you had to sit down for an hour and a half. That's where we're misunderstood on your condition. Could you tell us what your condition is?
[JUROR]: It's arthritis but it's lately worse that it has been and I can't sit down for long at this time. I don't go to the movies because I can't sit down. If I am walking around after an hour or so — it's like I got to be up again, no 10 or 15 minutes.
[COURT]: How long do you have to be up here?
[JUROR]: At home I usually do two hours.
[COURT]: Are you in pain right now?
[JUROR]: Uh-huh. But I'm not taking my medicine. If I do, I'll fall asleep.
[COURT]: Do you think that your condition will cause you not to be able to fairly perform your duty as a juror, fully and fairly perform your duties as a juror because of your condition?
[JUROR]: At first it won't. During the day it will. Yesterday I got a little — I lose my concentration. I'm hurting so bad I can't focus.
[COURT]: It does — in the beginning you're okay and as we go on throughout the day you're not able to sit there and listen and listen to the evidence; is that correct?
[JUROR]: Uh-huh.
[COURT]: You got to say yes or no.
[JUROR]: Yes.
[COURT]:You think because of your condition you can't pay 100 percent to the evidence and you can't — got to be fair to the State and the defense and I understand you're not able to do that. Is that what you are telling the Court?
[JUROR]: Right. . . .
[ATTY]: If we were to make accommodation for you where you could possibly stand over there, sit for a period of time and stand for a period of time do you think that that would help you?
[JUROR]: It could but to me it's just like being disruptive. I don't want to do that. If that's what it takes I can do that.
[ATTY]: So you could function that way and do you think that would affect your level of concentration?
[JUROR]: Maybe not much — I mean it could help but I don't know. Usually at home I can get up and get down when I need to. . . .
[COURT]: When we called her name yesterday it took her a long time to make it from the gallery of the court — the back of the court to the jury box. It was obvious to the court that she was in a great deal of pain.Based upon the court's observations, and the juror's statements about her painful physical condition, her inability to concentrate when she was in pain, the adverse effects of her pain medication, and her own personal opinion that she would not be able to fairly discharge the duties of a juror because she was not able to pay attention to the evidence, we conclude that there is sufficient evidence to establish that the juror was inhibited from "fully and fairly" performing her functions as a juror. Thus, the trial court did not abuse its discretion when it found the juror disabled. Further, that the juror was suffering from a pre-existing condition, rather than becoming disabled during the trial, is not relevant to this determination. See Timmons v. State, 952 S.W.2d 891, 893-94 (Tex.App.-Dallas 1997, no pet.) (holding that the trial court did not abuse its discretion in determining that a juror's Alzheimer's disease rendered her unable to perform fully and fairly the functions of juror and in excusing that juror, even though the disability was a pre-existing condition, because article 36.29(a) makes no provision for the disability's onset). Neither did the trial court err when it continued the trial with eleven jurors-the disabled juror was discharged before the charge was read to the jury. We decide appellant's first issue against him.
CHARGE ERROR
In his seventh issue, appellant complains that the trial court erred when it charged the jury with an application paragraph for conspiracy that did not give the culpable mental state for the offenses of robbery, aggravated robbery and conspiracy, nor did it allege the actual deadly weapon used. Appellant did not object to the jury charge at trial. When an appellant complains of charge error, we must first determine whether there is any error in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996). If we conclude that there is error, we must determine if the error caused sufficient harm to warrant reversal. Id. at 170-71. The extent of harm requiring reversal is controlled by whether the error was properly preserved at trial. Id. at 171; Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). Where the appellant failed to object to the error at trial, as in this case, we reverse only if the record shows that the error was so egregiously harmful that the appellant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). The application paragraph about which appellant complains states the following:Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that . . . (2) on or about the 22nd day of January, 2002, in Dallas County, Texas, the defendant, Calvin Ray Allen, entered into a conspiracy with Timothy Lemont Williamson or Corey Coleman to commit the felony offense of robbery of Randel Edwards, and that in the attempt to carry out the conspiracy to commit robbery, Timothy Lemont Williamson or Corey Coleman, did then and there commit aggravated robbery, to-wit: use or exhibit a deadly weapon, and that such offense was committed in furtherance of the unlawful purpose to commit robbery and was an offense that should have been anticipated as a result of the carrying out of the conspiracy, then you will find the defendant guilty of aggravated robbery, though he may have had no intent to commit it, and so say by your verdict.The Court of Criminal Appeals has held that an application paragraph that tracks the language of section 7.02(b) is sufficient. See Solomon v. State, 49 S.W.3d 356, 367-68 (Tex.Crim.App. 2001). Further, section 7.02(b) is similar to the felony murder statute in that the mental state required for the underlying felony supplies the mens rea for the felony actually committed. See Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 1993); see also Drew v. State, 76 S.W.3d 436, 454 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) cert. denied, 537 U.S. 1047 (2002). And the Court of Criminal Appeals has held that in a jury charge on felony murder, it is not error when the culpable mental state of the underlying felony is omitted if the definition of the mental state was correct in the abstract portion of the charge. Dinkins v. State, 894 S.W.2d 330, 339-40 (Tex.Crim.App. 1995). In the case before us, the abstract portion of the jury charge correctly stated the elements of robbery. See Tex. Pen. Code Ann. § 29.02 (Vernon 1993). The allegedly defective application paragraph was sufficient to refer the jury to the abstract instructions on the law so that the jury could properly apply the law to the facts. The first application paragraph also correctly stated the elements of robbery (including the requisite mens rea). Considering the charge as a whole, the charge sufficiently limited the jury to a finding of an underlying felony to support a finding of guilty of aggravated robbery under section 7.02(b). Thus, we find no error. Appellant also complains that the application paragraph does not name the specific deadly weapon used by a co-conspirator. He fails to cite any authority to support his position that this constitutes reversible error, however, and we have found none. Further, the trial court charged the jury with two alternative application paragraphs for aggravated robbery. The first application paragraph authorized appellant's conviction either as a principal or as a party pursuant to penal code section 7.02(a). The deadly weapon was specifically named: a tire iron or a crowbar. As stated earlier, the second application paragraph authorized appellant's conviction as a co-conspirator pursuant to penal code section 7.02(b). The deadly weapon was not named. However, the jury returned a general verdict, which is appropriate if the evidence is sufficient to support a finding under any of the theories submitted. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991); Hanson v. State, 55 S.W.3d 681, 688-89 (Tex.App.-Austin 2001, pet. ref'd). In this case, we found the evidence sufficient under all three theories. Therefore, there is a likelihood that the jury's verdict was based on an available alternative theory of culpability that was not affected by the alleged erroneous portion of the charge. We decide issue seven against appellant.
INEFFECTIVE ASSISTANCE OF COUNSEL Standard of Review
In his eighth issue, appellant contends that he did not receive a fair trial due to the ineffective assistance of his trial counsel. The standard for reviewing claims of ineffective assistance of counsel is articulated in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court held that the appellant must prove that counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on having produced a just result." Id. at 686; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Strickland established a two part test. First, appellant must prove that counsel's performance was deficient. Strickland, 466 U.S. at 687. In order to do so, appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel's conduct. Id. at 688-90. In evaluating this standard, counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant has the burden to overcome this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). An appellate court may not reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based on tactical decisions, but the record contains no specific explanations for counsel's decisions. See Bone v. State, 77 S.W.3d 828, 833-37 (Tex.Crim.App. 2002). Second, Strickland requires appellant to show that counsel's performance prejudiced his defense at trial. Strickland, 466 U.S. at 692. "It is not enough for the Appellant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, he must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id. at 694. "The question is whether there is a reasonable probability that absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. As a result, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500.Appellant's Arguments
1. Failure to object to improper jury charge. Appellant maintains that his trial counsel's failure to object or request a more specific charge in the first application paragraph as to a particular method of acting as a party (i.e. soliciting, encouraging, directing, aiding, or attempting to aid) constituted ineffective assistance of counsel. He also asserts that his trial counsel's failure to object to the second application paragraph, in that it did not set forth culpable mental states nor did it name the deadly weapon used, was also deficient representation. We agree that if a defendant desires a more explicit application of a particular method of acting as a party, such as the complaint about the first application paragraph, it is his burden to request it or object to the charge. Chatman v. State, 846 S.W.2d 329, 332 (Tex.Crim.App. 1993). If a party makes a specific request, which trial counsel in this case did not do, it is generally error to refuse to apply the law of parties to the facts. Johnson v. State, 739 S.W.2d 299, 305 (Tex.Crim.App. 1989). But if there is evidence of each of the manners of conduct, the trial court does not err if it refuses the request for a more explicit charge. See Goff v. State, 931 S.W.2d 537, 545 (Tex.Crim.App. 1996). The record is silent concerning trial counsel's decision not to object or request a more specific application paragraph. However, she may have believed that there was sufficient evidence to support a finding that appellant acted as a party in regards to all manners of conduct. Thus, even if the more explicit charge was requested, the trial court's failure to give it would not have been reversible error. Further, trial counsel may have based the decision not to request the more specific charge on tactical reasons. We have no way of knowing why trial counsel did what she did because she was not given the opportunity to explain her actions. Consequently, we will presume that she rendered adequate assistance and made the decision in the exercise of reasonable professional judgment. We have previously held that the alleged errors regarding appellant's complaints about the second application paragraph were not errors at all. And a trial counsel's failure to object to a proper charge is not ineffective. Ladd v. State, 3 S.W.3d 547, 565 (Tex.Crim.App. 1999). 2. Failure to object to improper jury argument. Appellant asserts that his trial counsel's failure to object when the prosecutor showed the picture of appellant's hands and made the following argument constitutes ineffective assistance of counsel:That is a puncture wound. It's not a cut. It's not a scrape. It's a puncture wound. Why is that important? Because Randel Edwards when he was fighting for his life, he grabbed a screwdriver and poked at the person that was attacking him. Doesn't know if he hit him or not.
[Appellant] was the one that was attacking him.Appellant also complains that his trial counsel's performance was defective when she failed to object to an alleged misstatement of the law regarding appellant's culpability as a party for the aggravated robbery, as follows:
I don't know if any of you are going to get hung up on that. The only reason that's in the Court's charge is because by his own words when he is talking to Detective Swain he's trying to distance guilt from himself, say "I didn't know about the guns. The other guy brought the gun. I thought it was going to be a strong-arm robbery." Even assuming you believe those words, which are obviously self-serving, he's still guilty of aggravated robbery.The approved general areas of argument are (1) summation of the evidence, (2) any reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, and (4) plea for law enforcement. Wesbrook, 29 S.W.3d at 115. It is also proper to correctly argue the law. State v. Renteria, 977 S.W.2d 606, 608 (Tex.Crim.App. 1998). When the prosecutor pointed out the "puncture wound" to the jury and argued that it was evidence that appellant must have been Edwards' attacker, the argument was both a summation of the evidence and a reasonable deduction from the evidence. See Richardson v. State, 879 S.W.2d 874, 881 (Tex.Crim.App. 1993) (holding that argument describing a photograph was a summation of the evidence); see also Redd v. State, 768 S.W.2d 439, 440 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd) (holding that argument based upon evidence shown in a photograph was a reasonable deduction from the evidence). When the prosecutor stated that even if the jury believed appellant's claim he did not know about the guns, the jury could still find appellant guilty of aggravated robbery as a co-conspirator, he was properly arguing the law. See Sarver v. State, 24 S.W.3d 448, 452 (Tex.App.-Texarkana 2000, pet. ref'd) (holding that it is a reasonable inference that when a person joins with two other persons and burglarizes a residence in midday, he should anticipate that they might be confronted by the occupant and that his co-conspirators might react violently to that confrontation, and might arm themselves with weapons found in the residence). An attorney's failure to object to proper argument cannot constitute ineffective assistance. Hubbard v. State, 770 S.W.2d 31, 46 (Tex.App.-Dallas 1989, pet. ref'd). We overrule issue eight.
ADMISSIBILITY OF VIDEOTAPE
During trial, the State proffered a videotape depicting "a graphic display of multiple stapled wounds all over Edward's shaven head." In his ninth issue, appellant complains that the videotape in question is overly gruesome and violates Rule 403 of the Texas Rules of Evidence, contending that its probative value is substantially outweighed by the danger of unfair prejudice to appellant. See Tex. R. Evid. 403.