Jones, Michael Rawleigh v. State

Opinion Issued September 25, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00857-CR MICHAEL RAWLEIGH JONES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 917202 MEMORANDUM OPINION Michael Rawleigh Jones, appellant, was charged with the offense of aggravated robbery. (1) He pleaded not guilty to the offense and not true to both enhancement paragraphs--one for unauthorized use of a motor vehicle and the other for aggravated assault. The jury found him guilty of the lesser-included felony offense of robbery, (2) and the trial court assessed his punishment at 40 years' confinement. In three issues, appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction and contends that his trial counsel was ineffective. We affirm. Factual & Procedural History In December 2001, appellant and co-defendant Don Brown forcibly entered the home of Tina Le and her family, and announced, "This is an armed robbery; everyone lay [sic] down." Elizabeth Tran, Tina Le's daughter, saw the co-defendant Brown enter the home carrying a rifle and wearing a gray shirt with an American flag on it and blue jeans. During the course of the robbery, while lying on the garage floor, Elizabeth saw appellant unsuccessfully try to hot-wire the family van. Appellant and co-defendant Brown terrorized and threatened both Tina Le and Elizabeth. Brown held a gun to Elizabeth's lips and demanded money. He also pointed a gun at Tina Le, demanded money and jewelry, and threatened her, "you want to die, you want to die?" Tina Le eventually led Brown to her bedroom to give him her money and jewelry. As she approached her bedroom, she saw appellant, dressed in a red shirt and blue jeans, leaving her ransacked bedroom carrying a "bunch of stuff." Appellant and Brown demanded the keys to the family van and fled the residence in the van, stealing the family's Christmas presents, jewelry, and money. Shortly after Tina Le notified the police, appellant and Brown were apprehended after a police chase that ended in the stolen van's being wrecked. When the police arrived at the family home, Elizabeth provided descriptions of both appellant and Brown. Then, Elizabeth and Tina Le were driven to the scene, where they both identified appellant and Brown as their assailants. The only stolen items returned to the family were two Christmas gifts. Prior to the trial, appellant filed a pretrial motion for severance, asking the court to try him separately from co-defendant Brown on the ground that their defenses were mutually inconsistent. However, appellant's trial counsel subsequently withdrew the motion during the pretrial proceedings. Sufficiency of the Evidence In issues one and two, appellant argues that the evidence was legally and factually insufficient to support his robbery conviction. Standard of Review In his first issue, appellant argues that the evidence was legally insufficient to support his conviction because the identification of appellant by Tina Le and Elizabeth Tran was flawed and unreliable. In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and ask whether a rational trier-of-fact could find the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). In his second issue, appellant argues that the evidence was factually insufficient to support his robbery conviction due to flaws in the witnesses' identification of appellant. In reviewing factual sufficiency, we examine all the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); King, 29 S.W.3d at 563; Valencia, 51 S.W.3d at 423. While conducting our analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the trier-of-fact, even when we disagree with the determination. King, 29 S.W.3d at 563. The trier-of-fact is the sole judge of the weight and credibility of the witness' testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Evidence of Identification Here, the State presented testimony from both Tina Le and Elizabeth Tran, as well as from Officer Smith and Deputies Lewis and Klim, regarding appellant's identification. Appellant did not present any witnesses. Both Tina Le and Elizabeth testified that the master bedroom had been ransacked by appellant; that appellant had tried to hot-wire their van before demanding the keys; that appellant was wearing a red shirt and jeans at their home during the robbery; and that appellant had the same clothing on at the scene of the van wreck where he was apprehended by police. Appellant argues that Elizabeth Tran failed to include appellant's facial tattoo in her description of the robber. However, Elizabeth admitted she could not even see the tattoo in the courtroom until appellant was asked to move very close to her. Appellant also argues that the officers at the wreck scene found only a pellet gun in the van, with no cash or stolen jewelry, contradicting the victims' testimony. Yet, officers found in the van the Christmas gifts taken from the victims' home during the robbery, and the pellet gun recovered inside the van was similar to that described by the victims. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence was legally sufficient for a rational trier-of-fact to find the essential elements of the crime beyond a reasonable doubt. Viewing the evidence neutrally, we observe that the jury decided, in this case, to believe Tina Le's and Elizabeth's testimony. Because the jury, as trier-of-fact, is the sole judge of the weight and credibility of the witness testimony, and because the proof of guilt was not so obviously weak as to undermine confidence in the jury's determination, or so greatly outweighed by contrary proof as to indicate that a manifest injustice occurred, we hold that the evidence was factually sufficient to support the verdict. We overrule appellant's first and second issues. Ineffective Assistance of Counsel In his third issue, appellant contends that he was denied the effective assistance of counsel. In assessing whether trial counsel was ineffective, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, appellant must demonstrate that counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms. Howland v. State, 966 S.W.2d 98, 104 (Tex. App.--Houston [1st Dist. 1998), aff'd, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel's performance was so prejudicial that it deprived him of a fair trial. Id. Thus, appellant must show that a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. It is the appellant's burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). Here, appellant argues that he was unfairly prejudiced by a joint trial with the co-defendant and that his trial counsel should have obtained a ruling on the motion for severance. He argues that counsel was ineffective solely on this basis. Therefore, we first address whether a severance should have been obtained. This court has adopted the general rule that, if a trial court is required to grant a motion to sever, and if trial counsel fails to ask for it, a defendant may argue that his counsel has been ineffective. Haggerty v. State, 825 S.W.2d 545, 547 (Tex. App.--Houston [1st Dist.] 1992, no pet.). In addition, if the trial court abuses its discretion in refusing to grant a motion to sever, a defendant may argue that his counsel had been ineffective. Id. However, since these conditions do not apply to this case, the general rule is inapplicable. There are two mandatory grounds for severance: (1) when one co-defendant has an admissible prior conviction and the person seeking the severance does not; or (2) when a joint trial would be prejudicial to one of the defendants. Id. at 548; see also Tex. Code of Crim. Proc. art. 36.09 (Vernon 2003). In the present case, both co-defendants had prior felony convictions. Thus, the only inquiry is whether appellant was unfairly prejudiced by a joint trial. Appellant argues that, as a result of the joint trial, he was unfairly prejudiced by the testimony presented about his co-defendant Brown's mental and physical cruelty during the robbery. Appellant contends that his co-defendant's acts demonstrated a much higher degree of culpability than his own. Appellant incorrectly asserts that a severance would have resulted in the jury's not hearing of his co-defendant's more culpable behavior. Co-defendant Brown's more culpable behavior included mental and physical threats to both victims. The State prosecuted appellant and Brown for robbery under the law of parties. Under the law of parties, a defendant is criminally responsible as a party to an offense committed by 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 2003); Otto v. State, 95 S.W.3d 282, 285 (Tex. Crim. App. 2003). Accordingly, the evidence of Brown's behavior would have been admissible in appellant's trial even if the cases had been severed. Therefore, a joint trial did not prejudice appellant, and severance was not mandatory. When a motion to sever is not mandatory, severance rests within the sound discretion of the trial court. Snow v. State, 721 S.W.2d 943, 945 (Tex. App.--Houston [1st Dist.] 1986, no pet.). An appellate court will find that the trial court abused its discretion in refusing a motion to sever only when the defendant satisfies the "heavy burden" of showing clear prejudice. Haggerty, 825 S.W.2d at 548. Here, there is no evidence of clear prejudice. Accordingly, we hold that appellant has failed to demonstrate by a preponderance of the evidence that his trial counsel's representation fell below an objective standard of reasonableness based on professional norms and has thus failed to satisfy the first prong of the Strickland test. We overrule appellant's third issue. Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Chief Justice Radack and Justices Keyes and Alcala. Do not publish. Tex. R. App. P. 47.2(b). 1. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). 2. See Tex. Pen. Code Ann. § 29.02 (Vernon 2003).