Alfred Netter v. State

Affirmed and Memorandum Opinion filed September 17, 2009. In The Fourteenth Court of Appeals _______________ NO. 14-08-00219-CR _______________ ALFRED NETTER, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1081268 M E M O R A N D U M   O P I N I O N Appellant, Alfred Netter, was convicted of aggravated robbery with a deadly weapon. In four issues, appellant argues that the evidence presented at trial was both legally and factually insufficient to support the conviction, and that he received ineffective assistance of counsel during the punishment phase of trial. Finding no reversible error by the trial court, we affirm. Background At trial, the jury heard the following evidence. On April 8, 2006, appellant and Julian Richardson were selling crack cocaine on the street outside of Richardson=s apartment when they saw the complainant, Andrew Morris, drive past them in a white Toyota. Morris pulled into a nearby parking lot and asked them if they were interested in buying drugs. Appellant and Richardson indicated that they were not interested but agreed to contact Morris if they changed their minds. After Morris drove away, appellant and Richardson decided to tell Morris they wanted to buy drugs, as a ruse to rob Morris when he returned. In preparation for the robbery, appellant and Richardson each retrieved a gun from Richardson=s apartment. Appellant carried a pistol loaded with .25-caliber ammunition, and Richardson carried one loaded with .38-caliber ammunition. Then, they contacted Morris and told him they wanted to buy two pounds of marijuana, two ounces of cocaine, and two ounces of crack cocaine. Morris returned to Richardson=s apartment around 11:00 p.m. driving the same white Toyota. Raneisha Hollinshed-Fort, the owner of the Toyota, was in the front passenger seat. Appellant sat in the back seat behind Morris, and Richardson sat behind Hollinshed-Fort. Appellant and Richardson instructed Morris to drive to the apartment complex where they had left appellant=s Cadillac earlier that evening. When Morris parked the Toyota near appellant=s Cadillac, appellant began to fire his weapon toward Morris, and Richardson fired his toward Hollinshed-Fort. Morris suffered five gun shot wounds to the head and neck and died at the scene. Hollinshed-Fort survived five gun shots to her back and shoulder. After shooting the complainants, appellant got out of the Toyota and started his Cadillac while Richardson took money and a cellular phone out of Morris=s pockets. Richardson left the scene in appellant=s Cadillac, and appellant drove the Toyota to a house he shared with his mother. Appellant and Richardson removed several items from the Toyota, including speakers, a case full of C.D.=s, and a cellular phone. They put the speakers and the C.D.=s inside appellant=s house and cleaned out the car with peroxide, ammonia, and bleach. Around 4:00 a.m., appellant and Richardson both went to sleep at appellant=s house. When they awoke around 8:00 a.m., appellant drove the Toyota to a nearby apartment complex. He wore gloves to avoid leaving fingerprints behind. Richardson followed him in the Cadillac. Residents of the apartment complex reported the Toyota to police when they noticed blood in the vehicle. On May 1, 2006, Crime Stoppers received an anonymous call suggesting that Richardson may have been involved in the robbery and murder of Morris. On May 22, 2006, Officer Jeffery Adams of the Houston Police Department arrested Richardson on unrelated warrants. While in custody, Richardson denied any involvement in the robbery and murder of Morris, but he told police that appellant may have been involved. After further investigation, police obtained a warrant for Richardson=s arrest for the robbery and murder of Morris. When Richardson learned that Hollinshed-Fort had identified him as one of the perpetrators of the offense, he confessed his involvement and informed police that some of the items taken from the Toyota could be found at appellant=s home. With consent from appellant=s mother, police searched the home on August 21, 2006. During that search, police discovered blue latex gloves, .25-caliber ammunition, .38-caliber ammunition, and the speakers that were taken from the Toyota. Richardson was indicted for capital murder, but he opted for a plea agreement; he pleaded Aguilty@ to aggravated robbery and accepted a fifty-year sentence. In exchange, he agreed to testify against appellant. Appellant was also indicted for capital murder, but the jury instead convicted him of aggravated robbery with a deadly weapon, a lesser-included offense. Appellant was sentenced to sixty years= imprisonment. On appeal, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. He also claims that he received ineffective assistance of counsel during the punishment phase. Analysis A. Accomplice Testimony In his first and second issues, appellant challenges the sufficiency of the evidence presented at trial. During the guilt phase of appellant=s trial, his alleged accomplice, Richardson, testified at length regarding appellant=s involvement in planning and executing the offense. As a part of his legal and factual sufficiency challenge, appellant argues that there is insufficient evidence establishing his participation in the commission of the offense apart from Richardson=s testimony, which he contends was not credible. The Texas Code of Criminal Procedure requires that accomplice testimony be Acorroborated by other evidence tending to connect the defendant with the offense committed.@ Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). Although appellant casts his challenges to the evidence as governed by general legal and factual sufficiency standards, a challenge of insufficient corroboration of accomplice testimony is reviewed under a different test.[1] Yost v. State, 222 S.W.3d 865, 871 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d). To determine whether sufficient corroboration exists, we eliminate the accomplice witness=s testimony from consideration and then determine whether any of the remaining evidence tends to connect the accused with the commission of the crime. Id. at 872. The non-accomplice evidence need not establish guilt beyond a reasonable doubt, nor must it directly link the accused to the commission of the offense. See id. Rather, the rule is satisfied if there is some non-accomplice evidence that tends to connect the accused to the commission of the offense alleged in the indictment. Id. In analyzing a challenge to the sufficiency of corroborative evidence, we view the evidence in the light most favorable to the jury=s verdict and determine whether a reasonable jury could conclude that the non-accomplice testimony, taken as a whole, tends to connect the appellant to the offense. See Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). Contrary to appellant=s contention, the State offered substantial corroborative evidence that satisfies the requirements of Article 38.14. See Tex. Code Crim. Proc. Ann. art. 38.14. That evidence includes the following: Hollinshed-Fort testified that she saw a vehicle matching the description of appellant=s blue Cadillac at the scene of the robbery. She also identified speakers found by police at appellant=s home as those that were taken out of her Toyota. Police located .25 and .38-caliber ammunition during their search of appellant=s home, which is the same caliber of ammunition used in the shooting. Richardson=s sister testified that she saw appellant and Richardson in Morris=s car with him the evening of the shooting. She also testified that she found Hollinshed-Fort=s C.D.=s at her apartment and saw appellant in possession of Morris=s cellular phone. In short, the evidence clearly connects appellant to the commission of the offense. Accordingly, we hold that the evidence sufficiently corroborates the accomplice testimony. B. Legal and Factual Sufficiency Appellant also challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated robbery. The standards of review for legal and factual sufficiency are well-known. In evaluating a legal sufficiency claim attacking a jury=s finding of guilt, we must view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Our review is limited only to whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). When conducting a factual sufficiency review, we review the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We determine (1) whether the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ or (2) whether, considering conflicting evidence, the fact finder=s verdict is nevertheless against the great weight and preponderance of the evidence. Id. at 414B15. A person commits the offense of aggravated robbery if, in the course of committing theft and with intent to obtain or to maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon. Tex. Penal Code Ann. '' 29.02(a)(2), 29.03(a)(2) (Vernon 2003). A deadly weapon is defined as: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. ' 1.07(a)(17) (Vernon Supp. 2008). Generally, appellant challenges the sufficiency of evidence establishing his identity as one of the perpetrators of the crime. To support this argument, he notes that (1) Hollinshed-Fort, the surviving complainant, was unable to positively identify him as one of the perpetrators, and (2) the State did not present any forensic evidence establishing appellant=s presence at the scene, such as fingerprint, footprint, or DNA evidence.[2] Thus, he contends the State did not introduce sufficient evidence to prove his identity. Certainly, the State must prove beyond a reasonable doubt that the party charged with an offense actually committed or participated in the commission of that offense. See Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984) (quoting Phillips v. State, 297 S.W.2d 134, 135 (Tex. Crim. App. 1957)). Identity may be proven by direct evidence, circumstantial evidence, or even inferences. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.CAustin 2000, pet. ref=d). The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact, considered in isolation, need not establish the guilt of the accused. See Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987) (quoting Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983)). Appellant=s argument points only to evidence the State did not present to establish his identity, and overlooks all of the evidence the State did present connecting him to the crime. First, the State introduced sufficiently corroborated testimony of the accomplice, Richardson, indicating that appellant fully participated in the robbery and actually fired the shots that struck and killed Morris. There was also evidence showing that appellant was in possession of items stolen during the robbery. See Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006) (holding that unexplained possession of recently stolen property permits inference that defendant committed the offense in which the property was stolen). Appellant was also found in possession of the same caliber ammunition that was used in the offense. Finally, according to other witnesses, appellant was in a car with Morris the night of his death and appellant=s blue Cadillac was parked at the scene of the robbery. In response to appellant=s specific arguments, eyewitness identification of the perpetrator is unnecessary, as long as other evidence establishes guilt for the offense. See Greene v. State, 124 S.W.3d 789, 792 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). Similarly, legally and factually sufficient evidence does not necessarily require the admission of physical evidence, such as fingerprints and DNA evidence. See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). We conclude that a rational jury could have found appellant guilty of aggravated robbery without such physical evidence. See id. Therefore, after reviewing all of the evidence, we hold the evidence is both legally and factually sufficient to establish appellant=s guilt beyond a reasonable doubt. We overrule appellant=s first and second issues. C. Ineffective Assistance of Counsel In his third and fourth issues, appellant claims he was denied effective assistance of counsel during the punishment phase of trial. He argues that counsel was ineffective because he failed to file a motion electing to have the jury assess punishment.[3] Thus, appellant claims that the trial court erred in denying his motion for new trial premised upon this argument. We review claims of ineffective assistance of counsel under the familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, an appellant must establish that (1) his trial counsel=s representation was deficient; and (2) the deficient performance was so serious that it deprived the appellant of a fair trial. Id. at 687. To satisfy this test, appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms; and that there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Id. at 690B94. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. Id. at 694; Ex parte Ellis, 233 S.W.3d 324, 330B31 (Tex. Crim. App. 2007). When, as here, a defendant asserts ineffective assistance of counsel in a motion for new trial, we review the trial court=s denial of the motion for abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by Tex. R. App. P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007). After the jury returned its verdict finding appellant guilty of aggravated robbery, the trial judge instructed the jury to return later for the punishment phase of the trial. At that point, the State notified the court that an election for jury punishment had not been filed. The trial judge asked defense counsel if appellant wanted the court to assess punishment. Initially, counsel responded that, although no election was filed, appellant would prefer to have the jury assess punishment. Following an off-the-record discussion, defense counsel conferred with his client, and appellant specifically requested that the court assess his punishment. Accordingly, the trial court announced that it would assess appellant=s punishment and discharged the jury. The court sentenced appellant to sixty years= confinement. Appellant filed a motion for new trial, asserting that he received ineffective assistance of counsel. This contention is based on his attorney=s failure to file an election of jury punishment. At the hearing on the motion, appellant testified that he would have elected jury punishment had he known it was his option. Appellant=s trial counsel acknowledged that the omission in failing to file the election was a Amistake.@ However, he also testified that (1) the trial judge gave appellant the opportunity to elect jury punishment despite counsel=s failure to file a written election, and (2) the jury was available to assess punishment, if requested, but that (3) appellant declined the trial court=s invitation. Counsel also testified that he had advised appellant to request sentencing by the court because it was likely that the jury would assess harsher punishment. According to his counsel=s testimony, the appellant agreed, and opted for the court to assess punishment at that time. In denying the motion for new trial, the trial judge noted that appellant was given an opportunity to elect jury sentencing and correct any earlier failure to file an election. The court found that he voluntarily elected to proceed with the punishment phase tried to the court. Absent a showing of both counsel=s deficient performance and resulting prejudice, we cannot conclude that a defendant=s conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 687). If an appellant fails to meet the element of prejudice, the reviewing court need not address the question of counsel=s performance. Hagens v. State, 979 S.W.2d 788, 793 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). Assuming without deciding that counsel=s failure to file an election for jury punishment fell below the objective standard of prevailing professional norms, appellant cannot demonstrate that the result would have been different absent counsel=s deficiency. Despite counsel=s failure to file the election, appellant was given the opportunity to elect jury punishment before the jury was discharged. Instead, he requested that the trial court assess his punishment. Thus, appellant himself waived his right to have the jury assess punishment. See Martin v. State, 452 S.W.2d 481, 482B83 (Tex. Crim. App. 1970); Mangham v. State, 833 S.W.2d 705, 708 (Tex. App.CHouston [1st Dist.] 1992, no pet.). Furthermore, the trial court assessed a sentence that is within the range of punishment for aggravated robbery[4] and is consistent with the egregious facts of the case. See Tex. Penal Code Ann. ' 12.32 (Vernon 2003). We certainly cannot speculate that a jury might have assessed a lesser sentence. See Ross v. State, 180 S.W.3d 172, 177 (Tex. App.CTyler 2005, pet. ref=d); Schaired v. State, 786 S.W.2d 497, 499 (Tex. App.CHouston [1st Dist.] 1990, no pet.). Thus, appellant has failed to meet the second prong of the Strickland test. See Strickland, 466 U.S. at 687. The trial court did not abuse its discretion when it denied appellant=s motion for new trial. Appellant=s third and fourth issues are overruled. Conclusion Accordingly, the judgment of the trial court is affirmed. /s/ Kent C. Sullivan Justice Panel consists of Justices Seymore, Brown, and Sullivan. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Sufficiency review of accomplice-witness testimony is legislatively imposed, and constitutional legal and factual sufficiency standards do not apply. Cathey v. State, 992 S.W.2d 460, 462B63 (Tex. Crim. App. 1999). [2] Appellant also argues that police discovered some evidence during the course of the investigation indicating that other individuals may have committed the robbery. Although others were initially investigated, Sergeant John Parker testified that they were ultimately excluded as suspects. [3] To have the jury assess punishment, a defendant must file a written election of punishment prior to voir dire. See Tex. Code Crim. Proc. Ann. art. 37.07 2(b)(2) (Vernon Supp. 2008). [4] AAn individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the institutional division for life or for any term of not more than 99 years or less than 5 years.@ Tex. Penal Code Ann. ' 12.32 (Vernon 2003). Aggravated robbery is a first-degree felony. See Tex. Penal Code Ann. ' 29.03(b) (Vernon 2003).