Brightmon, Harold Ray v. State

In The Court of Appeals For The First District of Texas ____________ NO. 01-02-00947-CR ____________ HAROLD RAY BRIGHTMON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 208th District Court Harris County, Texas Trial Court Cause No. 907915 MEMORANDUM OPINION A trial court found appellant, Harold Ray Brightmon, guilty of aggravated robbery and assessed punishment at 25 years’ confinement. In his sole point of error, appellant contends that he was denied effective assistance of counsel because appellant’s attorney (1) failed to object to the admissibility of a videotape showing appellant committing the offense and (2) failed to argue that appellant was innocent or that appellant should be found guilty of only a lesser included offense, during the closing of the guilt/innocence phase of his trial. We affirm.Background On April 5, 2002, appellant entered Radio Shack on 10810 West Bellfort in Harris County, Texas, where Luke Kwan was working as a manager. Once the other customers had left, appellant produced a handgun, told Kwan to give him “all the money,” took the money, and then exited the store. Kwan went outside and told two patrons that he had been robbed. The patrons, who were retired police officers, followed, caught, and held appellant at gunpoint until on-duty Houston Police Officer Richard Lowe, arrived. Officer Lowe recovered a loaded semi-automatic handgun and the stolen cash from appellant. The officer then escorted appellant back to the store, where Kwan identified appellant as the robber. Officer Lowe also took possession of the store’s security videotape, which had recorded the incident. Ineffective Assistance In his sole point of error, appellant contends that he was denied effective assistance of counsel. 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). See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant must show both that (1) counsel’s performance was so deficient as to fall below the objective standard of professional norms and, (2) but for counsel’s error, there is a reasonable probability the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833. Appellant has the burden to prove ineffective assistance of counsel and to rebut the presumption that counsel was acting on sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The Videotape Was Admissible Appellant first contends that he was denied effective assistance of counsel because his trial counsel failed to object to the State’s introduction of videotaped evidence without the proper predicate required by Rule 901 of the Texas Rules of Evidence. TEX. R. EVID. 901. Under this rule, the proper predicate for admitting videotape evidence requires proof that (1) it is an accurate representation of events at a given time and (2) it is relevant to the issue. Id.; Farrell v. State, 837 S.W.2d 395, 400 (Tex. App.—Dallas 1992), aff’d, 864 S.W.2d 501 (Tex. Crim. App. 1993). Videotaped evidence is admitted with the proper predicate when the testimony of an officer who takes possession of the tape, and, who testifies as to its authenticity, is combined with the testimony of a witness to the offense who can testify as to the videotape’s accuracy. S.D.G. v. State, 936 S.W.2d 371, 383 (Tex. App.—Houston [14th Dist.] 1996, pet. denied). In this case, the manager present during the robbery testified as to the videotape’s accuracy, and the officer who took custody of the videotape testified as to its authenticity by establishing a chain of custody. Because the State laid the proper predicate for admission of the videotape, an objection would have been futile. Appellant’s trial counsel was not ineffective for not objecting to the admissible videotape. The Closing Argument Was Appropriate Appellant also contends that he was denied effective assistance because, during closing arguments of the guilt/innocence stage, trial counsel did not argue that appellant was “not guilty” or that he should be found guilty of a lesser-included offense. If counsel’s acts or omissions rise to the level of a complete abdication of the adversarial system, then assistance is ineffective. Jordan v. State, 859 S.W.2d 418, 422 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Appellant must overcome the presumption that counsel’s acts or omissions can be construed as reasonable trial strategy. Strickland, 466 U.S. at 689; Jackson, 877 S.W.2d at 771; Henderson, 29 S.W.3d at 624. The record on direct appeal, which must support the claim of ineffective assistance of counsel, is rarely sufficiently developed to do so. Bone, 77 S.W.3d at 833-835. We will not speculate to find trial counsel ineffective when the record is silent on counsel’s strategy. See Alvarez v. State, 79 S.W.3d 679, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Choosing not to argue innocence during closing in the face of overwhelming evidence of guilt can be considered sound trial strategy when counsel anticipates success would be limited to the punishment phase. Jordan, 859 S.W.2d at 422. The record reflects that appellant’s trial counsel made the following argument during closing, “As far as guilt or innocence Your Honor, the evidence speaks for itself. . . . The videotape and the testimony will rest on the testimony of the individuals. And we will rest and close on that.” During the punishment phase, appellant’s trial counsel argued that there were mitigating factors that should be considered by the trial court in determining punishment. Those factors included the following: evidence that (1) appellant did not point the gun at Kwan, but merely showed it to him; (2) appellant did not commit additional violence at the store; and (3) appellant was apprehended by an older, retired officer without incident. Appellant was assessed only 25 years in a range of five to 99 years or life. Appellant did not file a motion for new trial and the record does not otherwise reveal counsel’s strategy. Appellant cannot overcome the presumption that counsel engaged in sound trial strategy. Accordingly, we overrule appellant’s sole point of error. Conclusion The trial court’s judgment is affirmed. Laura Higley Justice Panel consists of Chief Justice Radack and Justices Alcala and Higley.