No. 05-02-00342-CR.
Opinion Filed April 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 195th District Court, Dallas County, Texas, Trial Court Cause No. F98-37201-QN. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG.
Opinion By Justice FITZGERALD
Charlie Dejohnett Hawkins appeals his conviction for credit card abuse, enhanced by a prior felony conviction. After the jury found appellant guilty, the trial court found the enhancement allegation true and sentenced appellant to two years' imprisonment, probated for five years, and a $1000 fine. Appellant brings four points of error contending: (1) the evidence is factually insufficient to support his conviction; (2) appellant did not have effective assistance of counsel at trial; (3) the trial court erred in denying appellant's motion for mistrial; and (4) the trial court erred by failing to hold a hearing on appellant's amended motion for new trial. We affirm appellant's conviction.
FACTUAL BACKGROUND
On July 4, 1998, Lee Kirkely was killed in a boating accident. His body was found on July 5 by the Henderson police, which transferred his body and possessions, including the American Express Card for his business, Buell Door Co., to the Dallas County Morgue. On July 7, 1998, at a little after 6:00 p.m., two men, appellant and another man, entered Haverty's Furniture store and talked to a salesman, Royce Kimberlain, about purchasing a dining room set for their business. Kimberlain testified he spoke to appellant for about fifteen minutes before appellant stated he would purchase a $2300 dining room set. Kimberlain prepared the order slip and asked appellant his name, and appellant said he was Lee Kirkely. Appellant was holding a credit card. Kimberlain sent the men to the office personnel to complete the sale. Appellant produced Kirkely's American Express Card for Buell Door Co. to pay for the dining room set. When appellant could not produce proper identification, he and the other man left the store. The manager told Kimberlain the sale did not go through because appellant did not have proper identification to support his use of the credit card. Suspecting something was wrong, Kimberlain followed the men into the parking lot, and he wrote down the license number of the U-Haul truck they were driving. Mesquite Police Department detective Donald Dockins testified he contacted U-Haul and asked who had rented the truck with the license number supplied by Kimberlain. U-Haul gave Dockins the name of the person renting the truck, appellant, his driver's license number, and the Master Card number used to rent it. The Master Card was in appellant's wife's name. Dockins obtained a ten-to-twelve-year-old photograph of appellant and prepared a photograph array for the Haverty's employees to see if they could identify appellant as the suspect. Kimberlain, who had told Dockins he spoke with appellant for at least twenty minutes, examined the array and identified appellant's photograph without hesitation. The two employees who spoke briefly with appellant about refusing to accept the credit card without identification could not identify appellant from the array. Dockins testified that the signature of "Charles Hawkins" on the U-Haul rental form does not match appellant's signature on his driver's license. However, Dockins testified that "when people sign their name, and they're going to do it on something that might not be correct, they're not going to sign their normal signature. They're going to try to alter it to make it look different." Dockins also testified that the majority of the time, the person who steals a credit card sells it instead of personally using it to make purchases. On September 14, 1998, Dockins arrested appellant and interviewed him. Dockins had been informed that the theft of credit cards from corpses was an ongoing problem in Dallas and that Greg Ward was a suspect in the thefts. Dockins asked appellant if he knew Greg Ward, and appellant said he did not know him. Appellant never mentioned to Dockins that he had lost his driver's license and Master Card. On December 16, 1998, appellant's attorney approached Eric Smenner, a Dallas County assistant district attorney, and asked him to speak to appellant. Smenner agreed, and he interviewed appellant. Appellant told Smenner he knew Gregory Ward and that he would hang around appellant's office doing odd jobs and that Gregory Ward worked at the funeral home where Kirkely's body was taken. Appellant told Smenner he thought Gregory Ward had committed the offense. Appellant also said he did not rent the U-Haul and that his wife, who was the named account holder, paid the Master Card bill without checking with him about the U-Haul charge. Smenner examined the police file, and he asked to see appellant driver's license and Master Card. Appellant produced both from his wallet and gave them to Smenner. Smenner also noticed the police report mentioned that the suspect wore on his left hand ring finger a large, "huge," gold ring with diamonds, and Smenner observed that appellant was wearing such a ring on his left hand ring finger. Appellant testified he did not steal Kirkely's credit card, did not use Kirkely's credit card, did not rent a U-Haul truck, and had never been in Haverty's. Appellant testified he worked at his office every day until after 6:00 p.m. and could not have rented the truck or been present at the store when Kirkely's credit card was attempted to be used. Appellant testified the home telephone number listed on the U-Haul form was not his. Appellant testified he knew Ward, who was studying to be a mortician. Appellant said that at the time he was arrested, he knew Ward only by his nickname, Bebe. Ward frequently came to appellant's office to talk to the men who gathered there, drink coffee, and run errands for appellant. Alice Stewart, appellant's secretary, testified appellant always worked at the office until after 6:00 p.m. and that he was still at the office on July 7, 1998 when she left at about 6:15 p.m. SUFFICIENCY OF THE EVIDENCE
In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). The reviewing court is not free to reweigh the evidence and set aside a guilty verdict merely because the reviewing judges feel that a different result is more reasonable. See Clewis, 922 S.W.2d at 135. Rather, the purpose of this analysis is to allow an appellate court, in the exercise of its fact jurisdiction, to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Appellant first argues the evidence is factually insufficient because the trial court did not consider the new evidence proffered in appellant's first amended motion for new trial purporting to show Ward forged appellant's signature on the U-Haul form. A factual sufficiency review examines the evidence before the trier of fact; this evidence was not before the trier of fact and so cannot be considered in a review of the sufficiency of the evidence. See Idowu v. State, 73 S.W.3d 918, 922 n. 12 (Tex.Crim.App. 2002). Appellant's argument lacks merit. Appellant argues the evidence shows "Ward is a far better suspect in this offense than is appellant." Ward was in the best position to steal Kirkely's credit card from his body, but he was also in a position to sell or otherwise provide that credit card to appellant. Appellant's argument lacks merit. Appellant argues the evidence is factually insufficient because two of the three Haverty's employees could not identify appellant from the photographic array. The two employees who could not identify appellant spoke to him only briefly. Kimberlain spoke to appellant for fifteen to twenty minutes, and he identified appellant's photograph as the perpetrator without hesitation. The failure of the other two employees to recognize appellant from an old photograph of him does not make the evidence factually insufficient. Appellant's argument lacks merit. Appellant next argues the evidence is factually insufficient because a ten-to-twelve-year-old photograph of appellant was used in the array. Appellant asserts this picture was not a reasonable likeness. The jurors were able to examine the array, including appellant's photograph, and determine this issue for themselves. The use of a ten-to-twelve-year-old photograph in the array does not make the evidence factually insufficient. Appellant's argument lacks merit. Appellant also argues there was no reason for appellant to risk his prosperous insurance agency "by doing something as petty and pointless as using a stolen credit card to buy a dining set[.] . . . It is hardly the act of a dedicated man." From the record, we cannot determine why appellant committed the act. However, the evidence indicates the crime was the product of a well-thought-out plan. By using a different signature and a different home telephone number on the U-Haul rental form, appellant could claim his signature was forged and deny he was ever in Haverty's. The jury is the judge of the credibility of the evidence and was free to accept or reject appellant's explanation of his actions. Johnson, 23 S.W.3d at 8; Clewis, 922 S.W.2d at 135. Whether the State proved a motive for the offense does not render the evidence factually insufficient. Appellant's argument lacks merit. After reviewing all the evidence in a neutral light, the proof of appellant's guilt "is [not] so obviously weak as to undermine confidence in the jury's determination, [n]or [is] the proof of guilt, although adequate if taken alone, . . . greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. We conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first point of error. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second point of error, appellant contends he did not receive effective assistance of counsel at trial. To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish: (1) trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions; and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (1986). When the record contains no evidence of the strategy behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994); see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). A claim of ineffective assistance must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999); LaFleur v. State, 79 S.W.3d 129, 137 (Tex.App.-Texarkana 2002, no pet.). Appellant first asserts trial counsel "did not investigate, locate and subpoena Billy Caraway, the store manager at the U-Haul store who actually rented the truck to the man who attempted to use the stolen credit card at Haverty's." The record does not show that counsel failed to investigate Caraway's whereabouts. Appellant's assertion is not firmly founded in the record. Appellant asserts counsel did not investigate the fact Ward and Jada Ford used another of Kirkely's credit cards at a pawn shop less than four hours before the attempt to use Kirkely's American Express Card at Haverty's. The evidence on which appellant relies in support of this assertion is attached to appellant's second amended motion for new trial, filed seventy days after sentence was imposed. Because this amended motion for new trial was not filed within thirty days, it is a nullity and cannot be considered. Tex. R. App. P. 21.4; Mallett v. State, 9 S.W.3d 856, 865 (Tex.App.-Fort Worth 2000, no pet.); Rangel v. State, 972 S.W.2d 827, 838 (Tex.App.-Corpus Christi 1998, pet. ref'd). Also, the record does not show that counsel failed to investigate fully the wrongful use of Kirkely's credit cards by Ward. Accordingly, appellant's assertion is not firmly founded in the record. Appellant has failed to show he lacked effective assistance of counsel at trial. We overrule appellant's second point of error. MOTION FOR MISTRIAL
In his third point of error, appellant contends the trial court erred by denying his motion for mistrial after one of the jurors revealed he had met Kirkely and knew Kirkely's brother. During voir dire, the only mention that Kirkely was the owner of the credit card that appellant attempted to use was when the prosecutor read the indictment. The prospective jurors were never asked if they knew Kirkely or his family. During the State's opening statement, the prosecutor mentioned that the owner of the credit card had been killed in a boating accident. One of the jurors then said, "Say that again, please," and the prosecutor repeated her statement, "The owner of that credit card was killed in a boating accident." Kimberlain then testified. After Kimberlain's testimony concluded, juror William Penn told the trial court and the parties that he had met Kirkely: "I met him once or twice. His brother is actually a good friend of mine. I hadn't actually talked to him in two or three years. He used to go to church with us." Penn said he did business with the Buell Door Co. where Kirkely worked. Penn also said he had never met Kirkely's wife, who was one of the witnesses. Penn said he had not disclosed his knowledge of Kirkely to anyone else on the jury, and he said he could be fair and impartial and judge the case only on its merits. Appellant moved for a mistrial on the ground Penn might be biased. The trial court denied appellant's motion for mistrial. On appeal, appellant argues that Penn's failure to disclose during voir dire the fact he knew Kirkely and his brother deprived appellant of the opportunity to attempt to challenge Penn for cause or to use a peremptory strike to keep him from the jury. However, because appellant never asked Penn during voir dire if he knew Kirkely, he cannot complain of Penn's failure to reveal that fact during voir dire. See Gonzales v. State, 3 S.W.3d 915, 916-17 (Tex.Crim.App. 1999). Appellant's argument lacks merit. We hold appellant has not shown the trial court erred by denying his motion for mistrial. We overrule appellant's third point of error. HEARING ON MOTION FOR NEW TRIAL
In his fourth point of error, appellant contends the trial court erred by not holding a hearing on his second amended motion for new trial. Appellant's second amended motion for new trial was filed seventy days after the trial court imposed appellant's sentence. A motion for new trial and any amendments to it must be filed within thirty days of the imposition or suspension of sentence. Tex. R. App. P. 21.4. Because the second amended motion for new trial was not timely filed, the trial court acted correctly by not considering it. Gutierrez v. State, 764 S.W.2d 796, 801 (Tex.Crim.App. 1989). We overrule appellant's fourth point of error. We affirm the trial court's judgment.