Opinion
NO. 01-17-00539-CR
08-14-2018
JOSHUA COLLINS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 167th District Court Travis County, Texas
Trial Court Case No. D-1-DC-16-300760
The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases).
MEMORANDUM OPINION
The trial court convicted appellant Joshua Collins of the second-degree felony offense of robbery after a bench trial. After appellant pleaded true to four enhancement paragraphs, the court assessed his punishment at thirty years' incarceration. In five points of error, appellant argues: (1) the trial court's judgment incorrectly states that he pleaded "guilty," and that his sentence was agreed to by plea bargain; (2) the State failed to comply with the Michael Morton Act's statutory disclosure requirement; (3) the evidence is legally insufficient to support his conviction; (4) his trial counsel was ineffective by failing to object to irrelevant testimony and inadmissible hearsay; and (5) his trial counsel was ineffective by failing to offer into evidence an audio recording in which the complainant admitted that he was heavily intoxicated the night of the incident.
We modify the trial court's judgment to reflect that appellant pleaded "not guilty" to the offense and remove the reference to a plea bargain, and we affirm the judgment as modified.
Background
The complainant, Brian Tanton, left work around 11:30 p.m. one evening and went out drinking with some friends at a bar. After consuming "a couple beers and a couple shots," Tanton went to a second bar where he consumed another "couple beers." After the bars closed, Tanton went to the hotel room where his friends Gary and Molly were living for an "after-party." Tanton arrived at the hotel around 3 a.m. and the three of them smoked "a couple of bowls and a joint" of marihuana, drank beer, and played video games. Although he could not remember an exact number, Tanton testified that he probably consumed another four beers while he was at the hotel. He admitted on cross-examination that it could have been as many as five or six beers. Tanton testified that he did not know if there were other drugs in the hotel room but admitted that it was "very possible" that someone had cocaine. According to Tanton, everybody at the after-party "was pretty intoxicated."
Appellant arrived at the hotel room around 5:15 a.m. According to Tanton, appellant repeatedly tried to persuade Molly and Gary to abandon their lifestyle and move in with him. Appellant, who appeared agitated at first, became increasingly aggressive when Molly and Gary declined his offer. After arguing for about fifteen to twenty minutes, Gary asked appellant to leave. At that point, appellant demanded that Gary and Molly leave with him. When Gary stood up, appellant punched Gary in the face and knocked him unconscious.
At that point, Tanton jumped up and tried to intervene and appellant attacked him as well. According to Tanton, appellant knocked him to the ground and hit and punched him in the face at least thirty times. Appellant also put Tanton in a choke hold, but Tanton was able to break free before he lost consciousness. Tanton testified "that's when he finally stopped." According to Tanton, appellant threatened him during the assault saying, "I'll kill you, I'll kill you all, kill all you MF-ers." Appellant also claimed to have a pistol in his car. After he broke free, Tanton told appellant, "stop, stop, it's over, it's over, it's done." Appellant replied by telling Tanton, "empty your pockets, give me . . . all your shit." Appellant then patted Tanton down and took his wallet. Tanton testified that he was bleeding a lot at this point and he believed that appellant would hit him again if he did not comply. After taking Tanton's wallet, appellant chased Molly into the bathroom and grabbed her purse, as Tanton ran from the room. Tanton, whose face was bruised, swollen, and cut from the altercation with appellant, called police later that morning and reported the assault.
Detective Medrano testified that she met with Tanton at the hotel and took his statement. According to Medrano, Tanton told her that appellant demanded Tanton's property and Molly's purse "[d]uring the altercation."
Sufficiency of the Evidence
Because appellant's sufficiency challenge would be dispositive of his appeal if meritorious, we address his third point of error first.
In his third point of error, appellant argues that there is insufficient evidence supporting his robbery conviction because there is no evidence that: (1) he assaulted Tanton "in the course of committing theft," or (2) he intended to obtain or maintain control of Tanton's property before or during the assault.
A. Standard of Review
We review an appellant's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See Robinson v. State, 466 S.W.3d 166, 173 (Tex. Crim. App. 2015) (bench trial); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (jury trial). We examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. Our review of the evidence includes both direct and circumstantial evidence, regardless of admissibility. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Id.
During a bench trial, the trial court is the exclusive judge of the credibility of witnesses and the weight to give testimony, and our role on appeal is simply to ensure that the evidence reasonably supports the trial court's verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). As the finder of fact, the trial court may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). We evaluate the reasonableness of an inference "based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Clayton, 235 S.W.3d at 778. Any inconsistencies in the evidence are resolved in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton, 235 S.W.3d at 778 ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination.").
B. Applicable Law
A person commits robbery "if, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he . . . intentionally, knowingly, or recklessly causes bodily injury to another." TEX. PENAL CODE ANN. § 29.02(a)(1) (West Supp. 2017). "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. TEX. PENAL CODE ANN. § 29.01(1) (West Supp. 2017); Sorrells v. State, 343 S.W.3d 152, 155-56 (Tex. Crim. App. 2011). A person commits the offense of theft "if he unlawfully appropriates property with intent to deprive the owner of property." Id. § 31.03(a). Intent to obtain control of a victim's property may be inferred from the defendant's conduct. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).
An assault and an unrelated theft do not constitute robbery. "What elevates the occurrence of theft to robbery is the presence, at the time of, or prior to, the [causation of bodily injury], of the intent to obtain or maintain control of the victim's property." Cooper v. State, 67 S.W.3d 221, 223 (Tex. Crim. App. 2002). Thus, there must be a nexus between the assault and the theft, i.e. that the assault was committed "in the course of committing theft." See Sorrells, 343 S.W.3d at 158. This connection may be inferred when both offenses occur in close temporal proximity. Cooper, 67 S.W.3d at 224. "The general rule is still that a theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft." Id.; see also Sorrells, 343 S.W.3d at 157-58.
C. Analysis
The record reflects that after appellant knocked Gary out, Tanton jumped to his feet and was immediately attacked by appellant. Appellants punched or hit Tanton in the face at least thirty times and placed Tanton in a choke hold, causing Tanton to almost lose consciousness. After Tanton broke free from the choke hold, he pleaded with appellant to stop and appellant responded by demanding Tanton's property and taking Tanton's wallet from his pants pocket. At that point, appellant grabbed Molly's purse as she fled into the bathroom. According to Tanton, the assaultive conduct ended before appellant demanded Tanton's property and took Tanton's wallet. Tanton testified that, as far as he knew, appellant did not strike him or anyone else after he obtained the property.
Appellant argues that the undisputed evidence establishes that the assault was completed before he demanded Tanton's property and took his wallet, and thus he did not cause bodily injury "in the course of committing theft." TEX. PENAL CODE ANN. § 29.02. The fact that the theft did not occur until after the assaultive conduct ended, however, does not preclude a fact finder from determining that the assault occurred during the course of theft. It is well established that a theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft, even in the absence of any other evidence of a nexus between the theft and assault. Cooper, 67 S.W.3d at 224; see also Sorrells, 343 S.W.3d at 157-58.
Appellant further argues that Tanton's testimony establishes only one possible motive for the assault—Molly's and Gary's refusal to leave with appellant and Tanton's attempt to intervene in the dispute, and there is no evidence that he assaulted Tanton in order to steal from him, or that he planned to obtain or maintain control of Tanton's property before he assaulted him. Although Tanton's testimony may be some evidence that appellant assaulted Tanton, at least in part, for a reason other than theft, it does not demonstrate that Tanton's intervention was the only reason for the assault. Moreover, motive is not an element of robbery and although a defendant's motive for committing assault can be probative of the connection between the assault and theft, the ultimate issue is whether the assault occurred during the course of theft, not whether the theft was the primary motive behind the assault. See Sorrells, 343 S.W.3d at 158. Furthermore, the absence of any evidence that appellant planned to obtain or maintain control of Tanton's property before the assault does not preclude a fact finder from determining that appellant formed the intent to obtain or maintain control of Tanton's property during the assault.
The undisputed evidence establishes that appellant demanded Tanton's property and took Tanton's wallet immediately after he assaulted Tanton. There is no significant break in the chain of events between assaultive conduct and the theft of the wallet. Given the fact that the theft occurred immediately after the assault, the trial court could reasonably infer that appellant intended to obtain or maintain control of Tanton's property during the assault, he assaulted Tanton to facilitate the theft, and caused bodily injury to Tanton "in the course of committing theft." Cooper, 67 S.W.3d at 224; see also Sorrells, 343 S.W.3d at 157-58. A fact finder may draw such inferences even in the absence of any other evidence of a nexus between the theft and assault. See Cooper, 67 S.W.3d at 224; see also Sorrells, 343 S.W.3d at 157-58.
Viewing the combined and cumulative force of all the evidence in the light most favorable to the verdict, the trial court could rationally infer that appellant assaulted Tanton during the course of committing theft with the intent to obtain control over Tanton's property. See Jackson, 443 U.S. at 319; Sorrells, 343 S.W.3d at 156.
We overrule appellant's third point of error.
Clerical Errors in the Judgment
In his first point of error, appellant asserts that the trial court's judgment incorrectly states that he pleaded "guilty," and that his sentence of thirty years was agreed to by plea bargain. The appellant urges these errors require abatement of the appeal and remand to the trial court for correction.
An appellate court may "modify the trial court's judgment and affirm it as modified." TEX. R. APP. P. 43.2. We have "the power to correct and reform a trial court judgment 'to make the record speak the truth when [we] ha[ve] the necessary data and information to do so.'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, writ ref'd)); see also Bernard v. State, 401 S.W.3d 145, 150 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).
The record reflects that appellant pleaded "not guilty" to the charged offense, and that the trial court sentenced him to thirty years' confinement following the trial. Based on the record, we modify the trial court's judgment to show that appellant pleaded "not guilty" and remove the reference to a plea bargain. We sustain appellant's first point of error and modify the trial court's judgment accordingly.
Michael Morton Form
In his second point of error, appellant contends that the State failed to comply with the trial court's standing discovery order and the statutory disclosure requirements created by article 39.14 of the Texas Code of Criminal Procedure by not filing documentation identifying all the information provided to appellant during discovery. See TEX. CODE CRIM. PROC. ANN. § 39.14 (West 2018).
Article 39.14, which is also referred to as the Michael Morton Act, contains provisions relating to the State's duty to provide discovery to criminal defendants. Id. Among other requirements, subsection (j) requires that "[b]efore accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article." Id. § 39.14(j). In this case, the trial court's standing discovery order also requires the State to comply with subsection (j) and "file a document evidencing the same and signed by the defendant and his counsel, indicating compliance thereof, prior to disposing of the case." In his initial reply brief, appellant expressly states that he is not complaining that "he was deprived [of] discovery in the case, but instead that the State's failure to timely file the statutorily required Michael Morton form is an error which requires reversal and a remand."
Appellant filed a supplemental reply brief in which he alleges that the State made thirty-eight new documents available for discovery on July 5, 2018, using TechShare, an e-discovery platform. According to appellant, three of these documents are police reports regarding extraneous bad acts that contain "exculpatory and mitigatory material" and were in the State's possession prior to trial, but "had not previously been made discoverable or accessed or downloaded by Appellant's trial court or appellate counsel," prior to July 5, 2018. Appellant attached a print out from TechShare and copies of these police reports to his supplemental reply brief. Appellant's argument is unavailing. First, an appellant cannot raise a new issue in its reply brief and none of the materials appellant relies upon are included in the appellate record. Second, even if we could consider these new materials, we note that the TechShare print out provided by appellant refutes his allegations. Specifically, the document reflects that the police reports appellant complains about were made available to the defense on April 24, 2017, prior to trial. The clerk's record also demonstrates that the State filed its Notice of Intent to use evidence of extraneous acts that same day. In that April 24th document, the State provided a detailed description of the events documented by the police reports in question, including dates, locations, and offense report numbers or cause numbers. The State also averred: "The State would further inform the court that the defendant has received discovery of the offense in this case and has been put on notice of all acts and offenses as alleged therein."
The State argues that appellant failed to preserve these complaints for appeal because he did not raise these issues in the trial court, and even if the State failed to comply with these requirements, it was harmless error. To preserve a complaint for appellate review, a defendant must make a timely and specific request, objection, or motion in the trial court and obtain an adverse ruling from the trial court. TEX. R. APP. P. 33.1(a); see also Glover v. State, 496 S.W.3d 812, 816 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (holding defendant forfeits complaint based on Michael Morton Act's discovery requirements unless defendant complies with appellate rule 33.1(a)). Typically, a complaint is timely if it is made "'as soon as the [objecting party] knows or should know that an error has occurred.'" Garrett v. State, 518 S.W.3d 546, 553 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (quoting Lackey v. State, 364 S.W.3d 837, 843 (Tex. Crim. App. 2012)).
It is undisputed that appellant did not object to the State's alleged failure to file the required disclosure documents or make an acknowledgement on the record in the trial court. Nevertheless, appellant suggests that his complaints are timely because the State's failure to file the required documentation or make the required disclosure in open court "was not evident" until the appellate record was prepared, and by that time, appellant's deadline for filing a motion for new trial had expired. The discovery requirements created by subsection (j) must be performed "[b]efore accepting a plea of guilty or nolo contendere, or before trial." TEX. CODE CRIM. PROC. ANN. § 39.15(j). Similarly, the court's standing discovery order also requires the State to file a document evidencing its compliance with subjection (j) "prior to disposing of the case." Thus, given the deadlines for compliance, any alleged failures by the State to file a disclosure document or make a record before trial would have been evident to appellant prior to trial or appeal and could have been presented to the trial court. See Garrett, 518 S.W.3d at 553 (holding defendant must complain of error "as soon as the [defendant] knows or should know that an error has occurred"). Accordingly, we hold that appellant forfeited these complaints by failing to bring them to the trial court's attention and obtain a ruling. Glover, 496 S.W.3d at 816.
We overrule appellant's second point of error.
Ineffective Assistance of Counsel
In his fourth point of error, appellant argues that his trial counsel was ineffective because she did not object to: (1) Tanton's irrelevant testimony that appellant threatened him; and (2) Detective Medrano's testimony that Tanton had told her that the theft occurred during the altercation. In his fifth point of error, appellant argues that his trial counsel was ineffective because she did not offer into evidence an audio recording in which Tanton admitted to Medrano that he was heavily intoxicated the night of the incident.
A. Standard of Review and Applicable Law
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Under the Strickland two-step analysis, a defendant must demonstrate that (1) her counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694, 104 S. Ct. at 2064, 2068; Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
Appellate review of counsel's representation is highly deferential; we must "indulge in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08 (emphasis in original); see Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. To overcome this presumption, claims of ineffective assistance of counsel must be firmly founded in the record and affirmatively demonstrate the alleged ineffectiveness. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). However, a reviewing court will rarely be in a position to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the trial record is usually undeveloped and inadequate to reflect the motives behind trial counsel's actions. See id. In fact, trial counsel should have the opportunity to explain his or her actions before being condemned as ineffective. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Therefore, when the record is silent as to trial counsel's strategy, we assume that counsel had a sound strategy, unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
B. Analysis
Although appellant argues that his trial counsel was ineffective because she failed to object to inadmissible testimony that came in through Tanton's and Detective Medrano's testimony and she failed to offer an audio recording into evidence, appellant did not supplement the record through a motion for new trial or an evidentiary hearing that would have allowed trial counsel the opportunity to respond to these complaints. See Lopez, 343 S.W.3d at 143-44. As a result, the record is silent as to trial counsel's reasons for not objecting to Tanton's and Detective Medrano's testimony or offering the recording into evidence. See id. Therefore, we presume that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Appellant has thus failed to meet his burden to show that trial counsel's conduct constituted ineffective assistance under the first prong of Strickland. See Lopez, 343 S.W.3d at 144. Because appellant has not met his burden under the first prong of Strickland, we do not need to consider the second prong. See id. Accordingly, we overrule appellant's fourth and fifth points of error.
Conclusion
We modify the trial court's judgment to reflect that appellant pleaded "not guilty" and remove the reference to a plea bargain, and we affirm the judgment as modified. Any pending motions are dismissed as moot.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Do Not Publish. TEX. R. APP. P. 47.2(b).