Roderick Dwayne Williams v. State of Texas ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00675-CR NO. 03-99-00676-CR

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Roderick Dwayne Williams, Appellant

v.

State of Texas, Appellee

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FROM THE DISTRICT COURT OF HARRIS COUNTY, 185TH JUDICIAL DISTRICT NOS. 803,191 & 798,652, HONORABLE SUSAN V. BROWN, JUDGE PRESIDING

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Roderick Dwayne Williams appeals from his convictions for aggravated robbery. See Tex. Penal Code Ann. § 29.03 (West 1994). Two separate offenses were consolidated for a jury trial. ⁽¹⁾ After finding him guilty on both offenses, the jury assessed punishment at fifty years' confinement in the Texas Department of Criminal Justice--Institutional Division. We will affirm the convictions.

Factual and Procedural Background

The evening of November 3, 1998, complainant Hong Guo arrived at the apartment complex in which she lived. As she left her car, she noticed two male strangers walking towards her. She took a path that avoided them, went inside her apartment, and locked the door. Shortly thereafter, she heard a knock. An unseen person asked for "Maria." Guo answered that no one named Maria lived there. At that point, she heard someone kicking the apartment door. She called 911, but two men were able to kick in her door before she completed the call. A man later identified as Williams was holding a silver revolver and had a "pantyhose-type" mask on his face. The other man had a T-shirt pulled up over his nose. ⁽²⁾ While pointing a gun at Guo's head, the men demanded money. The phone rang; the men would not permit Guo to answer. A police officer left a message concerning the earlier 911 call. The men made another demand for money. The phone rang again. The men told Guo to answer but "not to speak Chinese." When Guo answered, a police officer asked if she needed help. She mumbled, "yes," but was afraid to say more as Williams still had a gun pointed at her head. Williams then cut the telephone line.

Guo opened a suitcase in her bedroom and gave Williams some cash. She told them her wallet was in her car. She described the car and surrendered the keys at their demand. Williams then had Guo lay on her bed face down where he tied her feet together with an electrical cord. Guo could hear what sounded like the other robber taking her television and videocassette recorder. When she looked in that direction, the second robber told her not to dare to look at him. Williams and the other robber left.

Guo remained where she was for a while, then freed herself and called 911. When a police officer arrived, he saw that the doorjamb had been busted and the door kicked in. The VCR was on the floor. The officer discovered that Guo's vehicle had been stolen and immediately reported it as stolen.

Late on the night of November 13, 1998, complainant Long Huy Vo and his girlfriend, Mary Doan, left a restaurant to return to Doan's home. They noticed a vehicle close behind theirs, which Vo thought might be his brother, who was also at the restaurant. As Vo pulled into the driveway at Doan's home the other vehicle, with a driver and passenger inside, pulled up behind Vo and blocked it in the driveway. Doan thought someone wanted directions, and continued toward the house. One man remained in the car; a man later identified as Williams pointed a gun at Vo's head and told Doan to get back in the car. Williams told Vo and Doan not to look at him and to give him all their money. Vo said they did not have any money. After Williams hit Vo in the head, Doan gave her purse to Williams. Williams emptied the purse and took Vo's wallet and cell phone. He kept asking for more money and hitting Vo when he said they had none. Williams asked Doan if she lived in the house but she said it was her girlfriend's home and she was just there to pick up some things. Williams then told them to get on the floorboard and count to one hundred before they looked up. After waiting a while, Vo and Doan discovered the men were gone. They went back to the restaurant for help. The police were called and began to investigate.

On November 20, 1998, Officer Chris Green of the Houston Police Department was on patrol in southwest Houston when he saw a vehicle with two occupants parked in the parking lot of a convenience store. He checked the license plate number, which revealed the car was stolen. He called for assistance, then followed the vehicle as it left the parking lot. The car was driven to a nearby apartment complex where Officer Green blocked it from leaving. The passenger, Williams, jumped out of the car, ran, and attempted to jump over a fence. He fell and broke an ankle. Officer Green held both men at gunpoint until they could be taken into custody. A search of the vehicle revealed a silver revolver, a black stocking cap, a white glove, and a small backpack with two and one-half pounds of marihuana inside. The vehicle had been ransacked and a door broken.

Officer Laura Whalen, in charge of the first robbery investigation, took the suspects before a magistrate, then placed each in a lineup. Guo went to the station and viewed a videotape of the lineup. She identified Williams. Officer Whalen connected the two robberies and contacted Vo, who also viewed the videotape and identified Williams.

The two cases were consolidated for trial. Williams made no trial-court objection to the consolidation. On appeal, he brings two issues for review: there is factually insufficient evidence to support his conviction for robbing Guo ⁽³⁾ and trial counsel rendered ineffective assistance.

Sufficiency of the Evidence

In his first issue, Williams challenges only the factual sufficiency of the evidence to support his conviction in cause 798,652. When the court reviews the legal sufficiency of a verdict, it does so in the light most favorable to the verdict to determine whether a rational finder of fact could have found all the elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999). However, when the court reviews the factual sufficiency of the evidence, it puts aside the prism of the "light most favorable to the verdict." See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

The reviewing court considers all the evidence and reverses if the verdict is so contrary to the overwhelming weight of the evidence as to be unjust. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 134. The jury's verdict, however, should still be accorded due deference so that the reviewing court does not, in effect, become the thirteenth juror. See Clewis, 922 S.W.2d at 133. The appellate court does not interfere with the jury's resolution of conflicts in the evidence or pass on the weight or credibility of testimony. Unless the record clearly reveals that a different result was appropriate, an appellate court should defer to the jury's determination concerning what weight to give contradictory testimonial evidence because the jurors' resolution of such conflicts often turns on an evaluation of credibility and demeanor that the jurors witnessed. See Johnson v. State, No. 1915-98, slip. op. at 12 (Tex. Crim. App., Feb. 9, 2000).

Williams raises several complaints about Guo's testimony. He contends that cross-racial eyewitness identification is the most unreliable form of eyewitness identification. ⁽⁴⁾ He claims that the mask he wore obscured Guo's view of his features; that she testified about noticing his eyes but had not mentioned his eyes during her reports to the police and that she did not mention his gold teeth or tatoos. His wife also testified that he was with her the night of Guo's robbery.

Guo unequivocally identified Williams in court as the individual who had robbed her at gunpoint and taken her car keys. She previously had unequivocally identified Williams in a videotaped recording of a line-up. Williams was apprehended in the complainant's stolen vehicle, and the same type of gun used by the robber was found in the car. Williams also attempted to flee when stopped while in Guo's stolen car, breaking an ankle in the process, from which an inference of guilt could be drawn. See Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1162 (1995); Cardenas v. State, 971 S.W.2d 645, 649 (Tex. App.--Dallas 1998, pet. ref'd).

Williams's issue is an attack on Guo's credibility. He asks this Court to substitute its judgment for that of the jury and believe the alibi provided by his wife. This we will not do. We hold the evidence factually sufficient to support his conviction in cause 798,652 and overrule the first issue presented.

Ineffective Assistance

In his second issue presented, Williams claims he did not receive effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, Williams must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the Williams's defense to such a degree that he was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Whether the Strickland standard has been met is to be judged by the totality of the representation measured as of the time of trial, not through hindsight. See Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App.), cert. denied, 510 U.S. 840 (1993); Ex parte Welborn, 785 S.W.2d 91, 93 (Tex. Crim. App. 1990).

Judicial scrutiny of the performance of a defendant's trial attorney is highly deferential. A reviewing court indulges a strong presumption that the conduct of the defendant's trial attorney fell within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). The burden of proving ineffective assistance of counsel falls on the accused, and such contentions must be proved by a preponderance of the evidence. See Kunkle, 852 S.W.2d at 505; Ex parte Cruz, 739 S.W.2d 53, 59 (Tex. Crim. App. 1987). An allegation of ineffective assistance of counsel should be sustained only if it is firmly founded in a record that affirmatively demonstrates counsel's alleged ineffectiveness. See Cruz, 739 S.W.2d at 59; Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981); see also Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (record on direct appeal is usually insufficient to support claims of ineffective assistance of counsel).

Williams's ineffective assistance claim revolves around the consolidation of the two causes for trial, the introduction of evidence concerning two extraneous offenses, and certain testimony elicited from his wife.

Williams claims that his trial attorneys rendered ineffective assistance by failing to object to the consolidation of these offenses, in part because of the possible admission of extraneous offenses, apparently referring to Guo's robbery being extraneous to Vo's and vice-versa. However, even in separate trials, the other offenses may have been admissible on the issue of identity, as both involved robberies of Asians only a few days apart in the same area of town, an area in which Williams lived. He was also driving Guo's stolen car when he robbed Vo. Further, as pointed out by the State, joinder of the cases for a consolidated trial on punishment insured that his sentences would be served concurrently. See Tex. Penal Code Ann. § 3.04(b) (West 1994). Consolidation was a reasonable trial strategy.

Williams also claims ineffective assistance because counsel failed to object to the introduction of the silver revolver and marihuana that were recovered from Guo's vehicle when Williams was apprehended. The state was entitled to introduce the silver revolver, which matched the description of the gun given by both Guo and Lo, and which was found in the car stolen from Guo. See Ransom v. State, 920 S.W.2d 288, 300-01 (Tex. Crim. App. 1996). Williams does not explain or show harm from the admission of the marihuana, and given the other facts, we find none. Even if the failure to object were a mistake, it was an isolated one.

Williams also contends that the trial attorneys failed to object to his wife's testimony that they met while he was incarcerated. This testimony was a permissible attack on the wife's credibility; she was evasive when first asked how she met Williams (she kept saying she met him in a "holding facility" and was uncertain if that was a prison). There were other aspects of their relationship about which the wife testified that also suggested she wanted Williams out of jail at any cost.

Williams has failed to rebut the strong presumption that the conduct of his trial attorneys fell within the wide range of reasonable professional assistance and failed to show that the preponderance of the evidence shows that the totality of his trial attorneys' representation fell below an objective standard of reasonableness. Accordingly, we overrule Williams's second issue presented.

Conclusion

We have overruled Williams's first issue presented concerning the factual sufficiency of the evidence to support his conviction for the robbery of Guo. We have overruled his second issue concerning ineffective assistance in both cases. Accordingly, we affirm the judgments of conviction.

Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices Kidd and Smith

Affirmed on Both Causes

Filed: May 18, 2000

Do Not Publish

1. Trial court cause number 803,191, our cause number 03-99-675-CR, involved complainant Long Huy Vo. Trial court cause number 798,652, our cause number 03-99-676-CR, involved complainant Hong Guo. The statement of facts shows that Hong Guo, when asked if she spelled her "last name" Guo, answered that she did. Accordingly, we use Guo as the equivalent of an English-language surname. For the same reason, we use "Vo" for complainant Long Huy Vo.

2. The record is not clear about what happened to the second robber.

3. Williams does not challenge either the legal or factual sufficiency to support his conviction in cause number 803,191 for robbing Vo. The only point of error we consider with regard to that conviction is ineffective assistance.

4. Williams is African-American; Guo is Chinese and had been in the United States for approximately four years at the time of trial. Williams refers us to a law review article, Elizabeth Loftus and D. Fishman, Expert Psychological Testimony on Eyewitness Identification, 4 Law and Psychology Review 87-103 (1978), and a New Jersey case in which an instruction on cross-racial eyewitness identification was given.

EM>Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. 1981); see also Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (record on direct appeal is usually insufficient to support claims of ineffective assistance of counsel).

Williams's ineffective assistance claim revolves around the consolidation of the two causes for trial, the introduction of evidence concerning two extraneous offenses, and certain testimony elicited from his wife.

Williams claims that his trial attorneys rendered ineffective assistance by failing to object to the consolidation of these offenses, in part because of the possible admission of extraneous offenses, apparently referring to Guo's robbery being extraneous to Vo's and vice-versa. However, even in separate trials, the other offenses may have been admissible on the issue of identity, as both involved robberies of Asians only a few days apart in the same area of town, an area in which Williams lived. He was also driving Guo's stolen car when he robbed Vo. Further, as pointed out by the State, joinder of the cases for a consolidated trial on punishment insured that his sentences would be served concurrently. See Tex. Penal Code Ann. § 3.04(b) (West 1994). Consolidation was a reasonable trial strategy.

Williams also claims ineffective assistance because counsel failed to object to the introduction of the silver revolver and marihuana that were recovered from Guo's vehicle when Williams was apprehended. The state was entitled to introduce the silver revolver, which matched the description of the gun given by both Guo and Lo, and which was found in the car stolen from Guo. See Ransom v. State, 920 S.W.2d 288, 300-01 (Tex. Crim. App. 1996). Williams does not explain or show harm from the admission of the marihuana, and given the other facts, we find none. Even if the failure to object were a mistake, it was an isolated one.

Williams also contends that the trial attorneys failed to object to his wife's testimony that they met while he was incarcerated. This testimony was a permissible attack on the wife's credibility; she was evasive when first asked how she met Williams (she kept saying she met him in a "holding facility" and was uncertain if that was a prison). There were other aspects of their re