Fields, Andre Keith v. State

Affirmed and Opinion filed October 24, 2002 Affirmed and Opinion filed October 24, 2002. In The Fourteenth Court of Appeals ____________ NO. 14-01-01099-CR ____________ ANDRE KEITH FIELDS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 865,893 O P I N I O N Appellant, Andre Keith Fields, was charged by indictment with aggravated robbery; he entered a plea of not guilty. However, a jury convicted appellant, found him to be a second offender, and assessed his punishment at 25 years’ imprisonment. On appeal, appellant contends (1) the trial court failed to instruct the jury on the burden of proof for extraneous offenses, (2) the prosecutor conducted improper voir dire, (3) he received ineffective assistance of counsel, and (4) the evidence is legally and factually insufficient to support his conviction. We affirm. The record reflects that Winnie Montgomery, the complainant, was the president of LaWon Enterprises, a business engaged in direct sales of products via a sales force of approximately twenty people. At the end of each work day, the sales persons would typically return to the business to turn in their cash receipts which were then placed in a blue bank bag in preparation for deposit at a local bank. On January 5, 2001, three armed men wearing ski masks entered LaWon Enterprises and ordered the employees to get down on the floor and empty their pockets. One of the hijackers, later identified as appellant, pointed a gun at Montgomery and asked, “Where’s the blue bag?” Montgomery did not have the bag, and appellant ordered her to the floor. After about an hour, the assailants ordered everyone into the bathroom. Meanwhile, employees heard the assailants going through the office, turning over desks and pulling phones out, apparently looking for the blue bag. The employees came out of the bathroom about 20 minutes later and called police. Several employees recognized the voice of one of the hijackers as belonging to appellant, who was employed for several months as a distributor and sales person at LaWon Enterprises until shortly before the robbery. I. Charge Error In his first issue, appellant contends the trial court erred at the punishment phase of the trial when it failed to instruct the jury on the State’s burden of proof for extraneous offenses. To support its enhancement allegation, the State introduced a penitentiary packet showing appellant had been previously convicted of aggravated assault. The penitentiary record, however, also contained numerous disciplinary reports regarding appellant=s behavior while incarcerated. Appellant argues the disciplinary reports constitute evidence of extraneous offenses and that the jury should have been instructed on the State=s burden to prove up such offenses “beyond a reasonable doubt.”[1] A trial court must submit a charge setting forth “the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2002). Law applicable to the case concerning extraneous crimes requires proof beyond a reasonable doubt and an instruction to that effect regardless of whether requested. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Failing to give this instruction constitutes statutory error,[2] and thus requires analysis under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Huizar, 12 S.W.3d at 482–83. Under Almanza, the reviewing court must first ascertain whether the error was preserved by objection at trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). An unpreserved complaint will not constitute reversible error unless the error was so unfair that the defendant was denied “a fair and impartial trial.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). Thus, a defendant can only obtain a reversal if the error caused “egregious” harm to the defendant. Id. A court must measure the degree of harm in “light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and other relevant information.” Almanza, 686 S.W.2d at 171. Appellant did not preserve error and after reviewing the entire record of his trial, we conclude that he was not denied a fair and impartial trial. The State presented a thirty-three page penitentiary report containing disciplinary infractions such as failure to obey orders, threatening guards, punching a guard, and indecent exposure. Appellant does not contest the veracity of these reports; rather, appellant complains he was harmed by the sheer volume of the evidence presented and the prosecution’s focus on the extraneous crimes. Although the prosecutor mentioned appellant’s prior conduct in closing argument, she focused primarily on his 1990 conviction for aggravated assault. Most important, however, the jury assessed a relatively low punishment. The statutory range of punishment in this case was 15 years to 99 years or life;[3] the jury, however, assessed a punishment of only 25 years. Accordingly, we find no egregious harm resulting from the trial court’s failure to properly instruct the jury. See Brown v. State, 45 S.W.3d 228, 232 (Tex. App.CFort Worth 2001, pet. ref’d) (holding defendant was not injured by trial courts failure to give reasonable doubt instruction regarding extraneous offenses when the jury assessed punishment well below the maximum permitted). Appellant’s first issue is overruled. II. Voir Dire In his second issue, appellant claims the trial court erred in permitting the State’s attorney to offer a hypothetical scenario during her voir dire examination that was factually specific to the case on trial.[4] We perceive no error in the prosecutor’s remarks. However, even if the prosecutor erred, appellant lodged no objection to the remarks. As a prerequisite to presenting a complaint for appellate review, the record must show that counsel complained to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). To preserve error during voir dire, the defendant must object to the prosecutor’s statement. Jenkins v. State, 870 S.W.2d 626, 629 (Tex. App.CHouston [1st Dist.] 1994, pet. ref’d). Here, appellant’s counsel did not object to the prosecutor’s use of a hypothetical scenario. Thus, appellant failed to preserve any error for appellate review. See Ransom v. State, 789 S.W.2d 572, 583 (Tex. Crim. App. 1989) (holding appellant failed to preserve error by failing to raise the complaint at trial court). Accordingly, appellant’s second issue is overruled. III. Ineffective Assistance of Counsel In his third issue, appellant complains his counsel was ineffective for failing to request a reasonable doubt instruction regarding the extraneous offenses introduced at the punishment phase of the trial. We find, however, that appellant failed to meet the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 688–93 (1984). Under Strickland, appellant must demonstrate (1) counsel’s performance was deficient and not reasonably effective and (2) the deficient performance prejudiced the defense. Id. Essentially, appellant must show his counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding could have been different. Id. at 693; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997). Judicial scrutiny of counsel’s performance must be highly deferential and we are to indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel’s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, to rebut this presumption, appellant must show, by a preponderance of the evidence, why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). If the record contains no evidence of the reasoning behind trial counsel’s actions, we cannot conclude counsel’s performance was deficient or speculate about the reasons behind trial counsel’s actions. Jackson, 877 S.W.2d at 771. If appellant proves his counsel’s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel’s errors, judged by the totality of the representation, denied him a fair trial, or his claim fails. McFarland, 928 S.W.2d at 500. Appellant fails to provide this Court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel. He did not file a motion for new trial, and the record contains no evidence of the reasoning behind his trial counsel’s actions in failing to request a reasonable doubt instruction at the punishment phase. Thus, appellant has failed to rebut the presumption that counsel’s actions were reasonably professional and motivated by sound trial strategy. Additionally, appellant has not demonstrated that trial counsel’s performance prejudiced his defense. As we have already observed, appellant’s punishment was on the low end of the statutory range. Appellant’s third issue is overruled. IV. Legal and Factual Insufficiency In his fourth and fifth issues, appellant argues the evidence is insufficient to support his conviction. Specifically, appellant contends the evidence is legally and factually insufficient to establish appellant=s identity as one of the perpetrators. In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n. 12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, “is the sole judge of the credibility of witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may believe or disbelieve any portion of the witnesses’ testimony. Sharp. v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). Appellant argues the evidence is legally insufficient because he was identified primarily by voice recognition. However, a voice identification may be made by means of an “opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker.” Tex. R. Evid. 901(b)(5). In fact, the use of voice identification has been upheld many times. Norton v. State, 564 S.W.2d 714, 717 (Tex. Crim. App. 1978) (holding in a case of false report to a peace officer that voice recognition was sufficient to establish the identity of the perpetrator); Locke v. State, 453 S.W.2d 484, 485 (Tex. Crim. App. 1970) (“Voice is a competent means of identification if the witness had any previous acquaintance with the person identified.”); Fuller v. State, 858 S.W.2d 528, 530 (Tex. App.CEastland 1993, pet. ref=d) (holding voice identification may be used to identify the perpetrator of a sexual assault); Wright v. State, 648 S.W.2d 35, 36 (Tex. App.CDallas 1983, no pet.) (holding that voice identification is neither unfair nor suggestive). Here, several witnesses identified appellant as the perpetrator. Two employees recognized appellant’s voice because they worked with him for over four months. In fact, one of the witnesses worked closely with appellant for two weeks and spoke with him several hours a day. Although the assailant wore a ski mask during the robbery, both witnesses also identified appellant in a live lineup with each suspect wearing a ski mask. Moreover, the complainant recognized the jacket worn by this assailant as the exact jacket that appellant had worn to work almost everyday. Further, the evidence suggests the robbery was committed by an “insider.” For example, the perpetrators knew their way around the office, although it was not normally open to the public. Also, the robbery coincided with the time that sales persons were returning to the office with their cash receipts. Additionally, the hijackers knew the money would be in a blue canvas bag. Finally, during the course of the robbery, appellant yelled at one of the employees to “get on the floor,” and called him by name while doing so. It is also probative that the hijackers targeted only selected employees for physical abuse. Although appellant and his accomplices kicked and hit several employees during the robbery, they focused their abuse on certain people, including Kenny Sutton, one of the office managers. Montgomery testified that appellant got along with his coworkers except Sutton because Sutton told appellant to get rid of his dreadlocks. Appellant refused and Montgomery put him on “9:00 to 5:00.” This required appellant to pick up his products at 9:00 a.m., instead of 7:00 a.m. and return unsold products at 5:00 p.m., instead of 6:00 p.m. Appellant blamed Sutton for his reduction in hours. Finally, we must presume the jury resolved any conflicting inferences on the issue in favor of the prosecution. Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1993). We test the evidence only to see if any reasonable trier of fact could find the elements established beyond a reasonable doubt. Jackson, 443 U.S. at 318. After examining the evidence, we find it is amply sufficient to permit a rational factfinder to convict appellant of aggravated robbery. Appellant, however, also contends the evidence is factually insufficient. When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict, and the verdict is set aside only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6–7 (Tex. Crim. App. 2000). The evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.CAustin 1992, no pet.). We consider the factfinder’s weighing of the evidence and can disagree with the factfinder’s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). However, we are not free to reweigh the evidence and set aside a verdict merely because a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We must defer to jury findings and find the evidence factually insufficient “only where necessary to prevent manifest injustice.” Id. Appellant specifically argues that the evidence is factually insufficient because he had an alibi witness. Appellant offered the testimony of his mother, Carrie Fields. Ms. Fields’ testimony, if believed, placed appellant at home during the robbery; however, this evidence must be weighed against the testimony of the State’s witnesses. Moreover, Ms. Fields had no independent recollection of the specific day the offense was committed; rather, she remembered appellant’s routine time to be home. Ms. Fields was impeached to some extent by her admission that she never went to police with the alibi claim but, instead, waited until trial to acknowledge her son’s innocence. The jury disregarded appellant’s alibi witness as was its right. Moore v. State, 804 S.W.2d 165, 166 (Tex. App.CHouston [14th Dist.] 1991, no pet.) (holding jury is entitled to accept the State’s version of the facts and reject appellant’s version or reject any of the witnesses’ testimony). We find the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appellant=s fourth and fifth issues are overruled. The judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Opinion filed October 24, 2002. Panel consists of Chief Justice Brister and Justices Hudson and Fowler. Do Not Publish C Tex. R. App. P. 47.3(b). [1] Article 37.07 ' 3(a) provides in relevant part: “. . . evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to ... evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have committed by the defendant or for which he could be held criminally responsible . . .” Tex. Code Crim. Proc. Ann. Art. 37.07 (Vernon Supp. 2002). [2] Article 36.14 of the Texas Code of Criminal Procedure , which applies to Article 37.07, requires a jury charge to contain the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14; Huizar, 12 S.W.3d at 484. An omitted instruction on the law applicable to the case constitutes a purely charge error under article 36.19 rather than a constitutional error and requires analysis under Almanza. Huizar, 12 S.W.3d at 484. [3] Tex. Pen. Code Ann. ' 12.42(c)(1) (Vernon Supp. 2002). [4] During voir dire, the prosecutor questioned the jury about a hypothetical aggravated robbery as follows: Q. [By Ms. Sinclair, the State=s attorney]: Okay. Let=s talk about how this occurs, how does this crime occur? Juror No. 3, who gets to pick the place the aggravated robbery is going to happen? Do you think that is going to be my complainant or a perpetrator? Who do you think is going to pick the place? A. [Venireperson]: The persons who anticipate committing the crime. Q. Certainly. How about who=s around when the crime=s committed? A. Could be anybody. Q. Who=s going to get to pick? That=s the question. A. Perpetrator. Q. Okay. Who=s going to pick whether or not I B let=s say there=s a firearm versus a knife versus a baseball bat? A. Perpetrator. Q. Okay. Who is going to pick what type of disguise, if any, I wear? A. Perpetrator. Q. Okay. Would everyone agree with me that the perpetrator is going to be in control here in terms of how this is going to take place? Everyone can see that? Anyone think the complainant has come control? Anyone see that? Okay