No. 14-08-00577-CR
Opinion filed April 2, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 182nd District Court Harris County, Texas, Trial Court Cause No. 1124043.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
ADELE HEDGES, Chief Justice.
Appellant, Jonathan Moises Torres, appeals his conviction for aggravated robbery for which he was sentenced to 75 years in prison. On appeal, appellant contends: (1) the evidence is factually insufficient to sustain his conviction; and (2) he received ineffective assistance of counsel. We affirm.
BACKGROUND
In the late evening of July 6, 2007, Tonya Chopp was in her garage taking out the trash when she heard suspicious noises in her front yard. She opened the garage door and observed three men in her driveway taking items from her vehicles; a fourth man was sitting in a parked car near her house. As Chopp opened the garage door, one suspect wearing a transparent stocking mask leaned across her station wagon, pointed a gun at her, and said something to the effect, "You don't want to do that." Chopp immediately closed the garage door, went inside her house, and called 911. As Chopp was talking with the 911 operator, she looked out her window and observed the four men flee in a Chevrolet Impala. Houston police were dispatched and arrived at Chopp's house shortly thereafter. Officer Ledesma of the Houston Police Department was the first officer to respond to Chopp's call and learned that the suspects took four television screens and one radio from the vehicles. Chopp recalled the events to Officer Ledesma and provided a description of the suspects: four Hispanic males between the ages of 18-25 years old. She also described the vehicle in which they fled as a silver four-door Chevrolet Impala. Officer Ledesma then broadcast this information on his radio, describing the suspects and their vehicle. About ten minutes later, Officer Brian Shepherd of the Houston Police Department observed four men, driving in a Chevrolet Impala, matching the description of the suspects in Officer Ledesma's broadcast. Officer Shepherd initiated a traffic stop, and other officers quickly arrived to assist Officer Shepherd. Officer Ledesma searched the Chevrolet Impala in which the suspects were driving and recovered two guns from the trunk of the vehicle. Chopp also arrived and identified each of the four suspects as the assailants she observed in her driveway. She further identified appellant as the individual that threatened her with a gun. One of the suspects, Margarito Lopez, provided information that led officers to the location of Chopp's stolen property, which was recovered in a vehicle parked a few miles away. The officers were able to recover three of the four television screens and the radio taken from Chopp's vehicles. All four men were arrested, and appellant was charged by indictment for aggravated assault. After a jury trial, appellant was found guilty of aggravated assault and sentenced to 75 years in prison. On appeal, appellant contends: (1) the identification evidence is factually insufficient to sustain his conviction; and (2) he received ineffective assistance of counsel. FACTUAL SUFFICIENCY
In appellant's first issue, he contends that the evidence is factually insufficient to show that he was the gunman during the robbery. In a factual sufficiency review, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury's verdict seems clearly wrong and manifestly unjust, or (2) whether, considering the conflicting evidence, the jury's verdict is against the great weight and preponderance of the evidence. Id. at 414-17; Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). It is not enough that we declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Watson, 204 S.W.3d at 417. If an appellate court determines that the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17; Rivera-Reyes v. State, 252 S.W.3d 781, 784 (Tex.App.-Houston [14th Dist.] 2008, no pet.). The reviewing court's evaluation should not intrude upon the fact-finder's role as the sole judge of the weight and credibility given to any witness's testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). A person commits the offense of robbery if, in the course of committing theft and with intent to obtain and maintain control of property, he "(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code § 29.02. The offense becomes aggravated robbery if the person committing the robbery causes serious bodily injury to another or uses or exhibits a deadly weapon. Id. § 29.03(a)(1), (2). A deadly weapon is considered "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B). Appellant contends that Chopp's identification of appellant as the gunman is "contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust" because: (1) it was dark outside at the time of the robbery; (2) the gunman's face was slightly distorted by a stocking mask; and (3) Chopp's identification was based on an allegedly inaccurate recollection that the officers recovered a stocking mask from appellant's pocket during the traffic stop. Viewing all the evidence in a neutral light, we conclude that the evidence is factually sufficient to support the State's contention that appellant was the gunman in the robbery. Although appellant correctly states that it was dark outside during the robbery, Chopp further testified that there was lighting in her driveway from her neighbor's outdoor lights and that she was able to see the suspects in her driveway, especially appellant who leaned on her car and threatened her with a gun. Additionally, Chopp testified that while appellant's face was slightly distorted with the stocking mask, she was still able to recognize appellant's facial features because the mask was "very thin" and transparent. She further testified that she recognized appellant as the gunman because the gunman had long hair, and appellant was the only suspect with similar long hair. Additionally, Chopp identified appellant in open court as the gunman. See Johnson v. State, 176 S.W.3d 74, 78 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (reasoning that the testimony of a single eye-witness identifying the accused is sufficient to support a felony conviction for aggravated robbery). Appellant also argues that Chopp's identification was based on an inaccurate recollection. At trial, Chopp testified that when she identified appellant as the gunman, Officer Ledesma recovered a stocking mask from appellant's pocket and had appellant put the mask over his face. Officer Ledesma testified that he neither recalled finding a stocking mask in appellant's pocket nor compelling appellant to put a stocking mask over his face while Chopp identified the suspects. Chopp's testimony is not necessarily inaccurate as Officer Ledesma testified that he simply did not recall recovering a stocking mask from appellant. Even if it is, some inaccuracies in a witness's description do not automatically render the evidence insufficient. See Escovedo v. State, 902 S.W.2d 109, 115-16 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Rather, such details are for the jury to consider in assessing the credibility of a witness. Id. Apparently, the jury in this case viewed the identification evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 409-10 (Tex.Crim.App. 1997) (reasoning that a jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State). Viewing all the evidence in a neutral light, we cannot say with some objective basis in the record that appellant's conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury's verdict. See Brown v. State, 212 S.W.3d 851, 864-65 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd); Johnson, 176 S.W.3d at 78. We conclude that the evidence is factually sufficient to identify appellant as the gunman in the robbery. Accordingly, overrule appellant's first issue. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, appellant argues that his trial counsel was ineffective for failing to object to Chopp's in-court identification of appellant as the gunman because the in-court identification was tainted by an unduly suggestive pre-trial identification procedure. To prove ineffective assistance of counsel, appellant must demonstrate that: (1) his counsel's performance was deficient because it fell below an objective standard of reasonableness; and (2) there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We also indulge a strong presumption that counsel's actions were motivated by sound trial strategy, and we will not judge the action to be deficient unless it was so outrageous that no competent attorney would have engaged in such conduct. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001), cert. denied, 537 U.S.1195 (2003). We look to the totality of the representation and not to isolated instances of error or to only a portion of the proceedings. Thompson, 9 S.W.3d at 813; Rivera-Reyes, 252 S.W.3d at 788-89. In the absence of evidence regarding counsel's reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506-507 (Tex.Crim.App. 2003). Appellant's contention that trial counsel's failure to object to Chopp's in-court identification denied him effective assistance of counsel essentially challenges the sufficiency of the identification evidence, which we have found to be sufficient. Furthermore, appellant presented no evidence of his trial counsel's reasoning or rationale for his actions. Appellant did not file a motion for new trial or introduce any evidence relating to his counsel's reasoning. Because the record provides no explanation as to why trial counsel failed to object to Chopp's in-court identification of appellant, the record on appeal is simply undeveloped. See id. Moreover, because there is no evidence in the record of any improper pre-trial identification procedures, we cannot conclude that counsel's performance was deficient and fell below an objective standard of reasonableness. The Court of Criminal Appeals has repeatedly cautioned appellate courts to be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions. Thompson, 9 S.W.3d at 814. On this silent record, appellant has not overcome the strong presumption that counsel acted pursuant to sound trial strategy. We overrule appellant's second issue. We affirm the trial court's judgment.