No. 01-10-00464-CR
Opinion issued July 14, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Cause No. 1225908.
Panel consists of Justices KEYES, HIGLEY, and GAMBLE.
The Honorable Brent Gamble, judge of the 270th District Court of Harris County, participating by assignment.
EVELYN V. KEYES, Justice.
Appellant, Barry Warren, appeals a judgment convicting him of aggravated robbery with a deadly weapon. See TEX. PENAL CODE ANN. §§ 29.02(a)(1), 29.03(a)(2), 31.03(a)-(b) (West 2011). Appellant pleaded not guilty before the jury. The jury found appellant guilty and assessed his punishment at 35 years' confinement in the institutional division of the Texas Department of Criminal Justice and a $5,000 fine. In four issues, appellant contends that (1) the evidence is legally and factually insufficient, (2) the trial court erred by admitting a police officer's testimony that one of the complainants had identified appellant out of a photo array, (3) the trial court erred by failing to instruct the jury that Brittani Mitchell was an accomplice as a matter of law, and (4) his trial counsel provided ineffective assistance during the voir dire examination, during cross-examination of a key State witness, and by failing to object to the jury instruction. We conclude that the evidence was sufficient, that the trial court properly admitted the testimony, that the trial court properly instructed the jury, and that appellant's counsel was not ineffective. We affirm.
Background
One evening in June 2009, after working all day, Faustino Martinez drove his coworkers, Adrian Caudia and Onecimo Reyna, in his truck to their apartment complex. Just after Martinez and his coworkers arrived, appellant and his nephew, Barry Lockhart, exited a nearby SUV while appellant's then-girlfriend, Brittani Mitchell, remained inside. Appellant pulled out a handgun, and Lockhart pulled out a knife. Seeing the men approach, Martinez exited his truck and began running away. Lockhart chased after Martinez. Appellant approached the passenger side of the truck, pointed the gun at the men inside, and demanded they exit the vehicle and give him their money. As Martinez was running away, he pulled out his cell phone and dialed 911. Appellant, seeing Martinez dialing, shouted for Lockhart to come back. Without having caught Martinez, Lockhart returned, and he and appellant drove away in the SUV. When the police arrived, they interviewed Martinez and his coworkers, who provided a description of the robbers and SUV. The next month, police showed Martinez two photo arrays, from which he identified appellant and Lockhart as the two robbers. In December, Lockhart pleaded guilty to aggravated robbery and his sentence was assessed at 10 years' imprisonment. During the guilt-innocence phase of trial, the State asked Martinez, "When you looked at those photos, did you pick out the people that robbed you, if you remember?" Martinez answered, "The truth is I do not recall very well." Detective Squier testified that he was present when Martinez identified appellant as one of the robbers. In addition to Martinez's prior out-of-court identification, Mitchell and Lockhart each identified appellant as having been one of the robbers. Mitchell testified that she remained in the SUV and watched as appellant approached the truck and pointed the gun at the two men inside. Lockhart testified that, while he was running after Martinez, appellant approached the truck and spoke with the two remaining men while holding a gun in his hand. Lockhart testified that he had a plan for perpetrating the robbery, which involved appellant and Mitchell. He testified that Mitchell was a prostitute at that time, that she had previously prostituted herself to Martinez and his coworkers, but that she had not prostituted herself to them on the day of the robbery. Specifically, Lockhart stated that the plan was for Mitchell to first seduce the men, after which he and appellant would rob them. Although Lockhart testified that Mitchell was part of his plan for perpetrating the robbery, he testified that he did not know whether she knew that he planned to rob somebody that day. Likewise, Mitchell testified that she did not know that appellant and Lockhart were about to rob the men in the truck. She also stated that she neither discussed the robbery with them nor talked to them about the possibility of her helping them rob the men. Nevertheless, Mitchell testified that, shortly after the robbery, Detective Squier interviewed her and "threaten[ed] to make [her] an accessory [to the robbery] if [she] didn't cooperate." Mitchell also testified that, in an unrelated matter, she had pleaded guilty to felony theft for stealing two diamond rings from a residence while cleaning the house and that her punishment had been assessed at four years probation. She further testified that, subsequently, she was arrested for a probation violation and her punishment was assessed at six months in the State jail, the minimum possible punishment. In the charge on guilt or innocence, the trial court instructed the jury that it could convict appellant based on an accomplice's testimony only if that testimony was corroborated by other, non-accomplice evidence tending to connect appellant with the charged offense. The trial court also instructed the jury that Lockhart was an accomplice. However, the court left the question of whether Mitchell was an accomplice up to the jury. Admission of Police Officer's Testimony
In his second issue, appellant contends that the trial court improperly admitted Detective Squier's testimony that Martinez had indentified appellant out of a photo array as one of the two robbers. Specifically, appellant contends that this admission violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution because Martinez was not available to be cross-examined concerning the identification as Martinez had testified to a lack of memory. See TEX. R. EVID. 804(a)(3) ("Unavailability as a witness' includes situations in which the declarant . . . testifies to a lack of memory of the subject matter of the declarant's statement. . . ."). A. Standard of Review
Although an appellate court defers to a trial court's determination of historical facts and credibility, it reviews de novo a constitutional legal ruling. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010). B. Applicable Law
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. CONST. amend. VI. This constitutional guarantee applies to both federal and state criminal prosecutions. U.S. CONST. amend. XIV; Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069 (1965). In reviewing a Confrontation Clause challenge, an appellate court must "first determine whether the Confrontation Clause is implicated . . . before deciding if the constitutional guarantee was violated." Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011) (citing Crawford v. Washington, 541 U.S. 36, 50-52, 124 S. Ct. 1354, 1363-65 (2004)). The admission into evidence of an out-of-court statement implicates the Confrontation Clause only if (1) the statement is testimonial in nature and (2) the declarant is absent from the trial. Id. Such a statement violates the Confrontation Clause if (1) the declarant is available to testify or (2) the defendant did not have a prior opportunity to cross-examine the declarant. Id. (citing Crawford, 541 U.S. at 59, 124 S. Ct. at 1368-69). An out-of-court identification of a person during a police photo array is a testimonial statement for purposes of the Confrontation Clause. Walker v. State, 180 S.W.3d 829, 831, 834 (Tex. App.-Houston [14th Dist.] 2005, no pet.); see generally Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74 (2006) ("Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."). "[M]emory loss does not render a witness `absent' for Confrontation Clause purposes if she is present in court and testifying." Woodall, 336 S.W.3d at 644. C. Analysis
Because Martinez was present in court and testifying, he was not absent from trial for Confrontation Clause purposes merely because he testified to a lack of memory concerning his prior identification. See id. Accordingly, the admission of Martinez's prior out-of-court identification did not implicate, and thus could not have violated, the Confrontation Clause. See id. at 642-44. Appellant's second issue is overruled. Failure to Give an Accomplice-as-a-Matter-of-Law Instruction
In his third issue, appellant contends that the trial court erred by failing to instruct the jury that Mitchell was an accomplice witness as a matter of law. A. Applicable Law
A person is an accomplice to the offense committed by the accused if (1) before, during, or after its commission, she participates in the offense with the requisite mental state and (2) she engages in an affirmative act that promotes the commission of the offense. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (citing Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007)). A person is not an accomplice merely because (a) she agrees to participate in the commission of the offense, see Ferguson v. State, 573 S.W.2d 516, 523 (Tex. Crim. App. 1978); Bacey v. State, 990 S.W.2d 319, 327 (Tex. App.-Texarkana 1999, pet. ref'd), (b) she is present at the crime scene, Smith, 332 S.W.3d at 439 (citing Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986)), (c) she knows about the offense and fails to disclose it, id. (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987), or (d) she helps the accused conceal the commission of the offense, id. "A State's witness may be an accomplice as a matter of law or as a matter of fact." Id. (citing Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006)). A witness is an accomplice as a matter of law if (1) she is susceptible to prosecution for the same offense or a lesser included offense, Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004), or (2) she was indicted for the same offense or a lesser included offense and, at the time she testifies, either (a) the State has not dismissed the indictment or (b) the State dismissed the indictment in exchange for her agreement to testify against the accused, Smith, 332 S.W.3d at 439 (citing Cocke, 201 S.W.3d at 748; Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991); Solis v. State, 792 S.W.2d 95, 97 (Tex. Crim. App. 1990); Garza v. State, 164 Tex. Crim. 9, 296 S.W.2d 267, 268-69 (1956); Herrera v. State, 115 Tex. Crim. 526, 27 S.W.2d 211, 212 (1930); Chastain v. State, 97 Tex. Crim. 182, 260 S.W. 172, 173 (1924); Oates v. State, 48 Tex. Crim. 131, 86 S.W. 769, 772 (1905); Barrara v. State, 42 Tex. 260, 264 (1874)). "The evidence in each case will dictate whether an accomplice as a matter of law or fact instruction is required." Id. (citing Cocke, 201 S.W.3d at 747; Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)). "When the evidence clearly shows (i.e., there is no doubt) that a witness is an accomplice as a matter of law, the trial judge must instruct the jury accordingly." Id. (citing Gamez, 737 S.W.2d at 322). "When there is doubt as to whether a witness is an accomplice (i.e., the evidence is conflicting), then the trial judge may instruct the jury to determine a witness's status as a fact issue." Id. at 439-40 (citing Druery, 225 S.W.3d at 498-99; Gamez, 737 S.W.2d at 322). "Finally, when the evidence clearly shows that a witness is not an accomplice, the trial judge is not obliged to instruct the jury on the accomplice witness rule — as a matter of law or fact." Id. at 440 ( Gamez, 737 S.W.2d at 322). B. Analysis
Appellant bases his contention that Mitchell was an accomplice to the robbery on the evidence that she was present during the robbery. However, Mitchell is not an accomplice merely because she was present at the crime scene. See Smith, 332 S.W.3d at 439 (citing Kunkle, 771 S.W.2d at 439). Appellant further contends that Mitchell's role as a seductress constituted an affirmative act promoting the commission of the robbery. Although Lockhart testified that he had a plan for perpetrating the robbery that involved Mitchell seducing the men immediately before he and appellant robbed them, the evidence undisputedly shows that Mitchell did not do so. Even if Lockhart's testimony concerning his plan constituted evidence that Mitchell agreed to participate in the robbery, this alone, without any evidence of an affirmative act, does not render her an accomplice. See Ferguson, 573 S.W.2d at 523; Bacey, 990 S.W.2d at 327. The evidence further shows that Mitchell remained in the SUV during the robbery; there is no indication she communicated with the robber or took any other action during that time. Additionally, appellant bases his contention that Mitchell was susceptible to prosecution for the robbery on her testimony that, during her first post-robbery interview, Detective Squier threatened to make her an accessory to the robbery. However, Detective Squier testified that, after interviewing Mitchell, he did not believe that she had been involved in any way. Finally, appellant asserts that Mitchell "perhaps received favorable consideration in the form of a minimum sentence for her cooperation in testifying against [appellant]." In direct contradiction to this speculation, Mitchell testified that she had not made any sort of deal with the prosecutor, that he had not cut her any slack in exchange for her testimony, and that Detective Squier had not told her that he would help with her probation case in exchange for her testimony. Nevertheless, even if appellant's assertion were true, it does not follow that Mitchell was an accomplice. A witness's deal with the State involving an agreement to testify has relevance to the accomplice-witness inquiry only if what the witness received in exchange is the dismissal of — or perhaps a promise not to seek — an indictment for the same offense or a lesser included offense. See Smith, 332 S.W.3d at 439. In the present case, the record contains no indication that the revocation of Mitchell's probation had anything to do with her participation in the robbery. Because the record evidence does not clearly show that Mitchell participated in the offense or engaged in any affirmative act that promoted the commission of the robbery, the trial court did not err by failing to instruct the jury that Mitchell was an accomplice as a matter of law. See id. (citing Druery, 225 S.W.3d at 498). We overrule appellant's third issue. Sufficiency of the Evidence
In his first issue, appellant contends that the evidence is legally and factually insufficient to support the jury's verdict finding him guilty of aggravated robbery with a deadly weapon. A. Standard of Review
An appellate court reviews legal and factual sufficiency challenges using the same standard of review. Griego v. State, 337 S.W.3d 902, 902 (Tex. Crim. App. 2011); Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912, 926 (Tex. Crim. App. 2010)). Under this standard, evidence is insufficient to support a conviction if, considering all record evidence in the light most favorable to the verdict, a factfinder could not have rationally found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Brooks, 323 S.W.3d at 899 (plurality op.); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere "modicum" of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 n. 11; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. The sufficiency of the evidence is measured by the elements of the offense as defined in a hypothetically correct jury charge, which is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982). An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). When the record supports conflicting inferences, an appellate court presumes that the factfinder resolved the conflicts in favor of the verdict and defers to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. An appellate court likewise defers to the factfinder's evaluation of the credibility of the evidence and the weight to give the evidence. Williams, 235 S.W.3d at 750. In viewing the record, a court treats direct and circumstantial evidence equally: Circumstantial evidence can be as probative as direct evidence, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13). A conviction may be based on an accomplice's testimony only if that testimony is corroborated by other, non-accomplice evidence tending to connect the accused with the offense committed. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Smith, 332 S.W.3d at 439. B. Applicable Law
A person commits aggravated robbery if (1) in the course of committing a theft and with the intent to obtain or maintain control of the property, he intentionally or knowingly threatens another with or places another in fear of imminent bodily injury or death and (2) he uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. §§ 29.02(a)(1), 29.03(a)(2), 31.03(a)-(b). C. Analysis
Appellant does not challenge the sufficiency of the evidence to show beyond a reasonable doubt that the robbery took place. Rather, he contends that there is no other, non-accomplice evidence tending to connect him with the offense committed. We disagree. Mitchell's testimony that she remained in the SUV and watched as appellant approached the truck and pointed the gun at the two men inside corroborates Lockhart's testimony and tends to connect appellant to the robbery. As explained above, the evidence did not clearly show that Mitchell was an accomplice to the robbery. The jury could have reasonably found that she was not an accomplice, and thus it could have relied on her testimony to corroborate Lockhart's testimony and to connect appellant to the robbery. See TEX. CODE CRIM. PROC. ANN. art. 38.14; Smith, 332 S.W.3d at 439. We overrule appellant's first issue. Ineffective Assistance of Counsel
In his fourth issue, appellant asserts that his trial counsel ineffectively assisted him by failing to voir dire the venire concerning the law of parties and the accomplice-witness rule; by failing to ask Mitchell follow-up questions, during cross-examination, concerning Detective Squier's threat to make her an accessory to the robbery; by failing "to fully explore the conversations pertaining to those plea bargain negotiations and their proximity to the charges in this robbery case"; and by failing to object to the lack of an accomplice-as-a-matter-of-law instruction as to Mitchell in the jury charge. A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence that (1) defense counsel's performance was deficient such that the assistance fell below an objective standard of reasonableness and (2) the deficiency caused the defendant prejudice such that there is a reasonable probability that, but for the deficient performance, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In proving that counsel's performance was deficient, a defendant must overcome a strong presumption that counsel's action was a sound trial strategy. Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; Thompson, 9 S.W.3d at 813. The effectiveness of assistance of counsel is reviewed in context with the totality of the representation and the particular circumstances of each case. Strickland, 466 U.S. at 695, 104 S. Ct. at 2069; Thompson, 9 S.W.3d at 813. "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813. B. Analysis
Appellant concedes that he cannot show on the present record that his trial counsel's performance was deficient such that his assistance fell below an objective standard of reasonableness. Accordingly, we cannot conclude that appellant received ineffective assistance of counsel. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 812. We overrule appellant's fourth issue. Conclusion
We affirm the judgment of the trial court.