Jerryl Robinson v. State ( 2015 )

ACCEPTED
03-14-00407-CR
5686688
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/15/2015 11:41:47 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00407-CR
__________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRD AUSTIN, TEXAS
DISTRICT OF TEXAS 6/15/2015 11:41:47 PM
__________________________________________________________
JEFFREY D. KYLE
Clerk
JERRYL ROBINSON, Appellant
v.
THE STATE OF TEXAS, Appellee
__________________________________________________________
On Appeal from the 207th Judicial District Court of Comal County, Texas
Cause No. CR2013-349
Honorable Gary L. Steel, District Judge Presiding
__________________________________________________________
BRIEF FOR THE STATE
__________________________________________________________
Jennifer Tharp
Criminal District Attorney
By
Joshua D. Presley
SBN: 24088254
Assistant District Attorney
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: preslj@co.comal.tx.us
Attorney for the State
Oral Argument Is Not Requested
Identity of Parties and Counsel
Attorneys for the Appellant Nathaniel Paul Fox
AT TRIAL
Michael Zamora
211 Babcock Rd.
San Antonio, TX 78201
Telephone: (210) 738-0067
Facsimile: (830) 980-2021
David M. Collins
206 E. Locust St.
San Antonio, TX 72212
Telephone: (210) 212-6700
Facsimile: (210) 249-0116
ON APPEAL
Marilee H. Brown
391 Landa Street
New Braunfels, Texas 78130
Telephone: (830) 629-6955
Facsimile: (830) 629-2559
Email: marilee@hazelbrownlaw.com
Attorneys for the Appellee, The State of Texas
AT TRIAL
Abigail Whitaker
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: whitaa@co.comal.tx.us
ii
Christine Rankin
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: rankic@co.comal.tx.us
ON APPEAL
Joshua D. Presley
SBN# 24088254
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: preslj@co.comal.tx.us
ii
Table of Contents
Index of Authorities ...................................................................................................v
Statement of the Case............................................................................................... ix
Issues Presented .........................................................................................................2
Statement of Facts ......................................................................................................3
Summary of the Argument.........................................................................................6
1. Appellant’s Speedy Indictment Claim Fails Under Texas Case Law...8
A. Appellant Failed to Preserve Any Error by Not Correctly Filing His
Application, Urging a Hearing, Obtaining a Ruling and Appealing Any
Adverse Ruling Pretrial ...................................................................................8
B. Even if Appellant had Preserved the Issue, His Claim Was Moot
When an Indictment Was Returned Before Any Hearing on His
Application ....................................................................................................11
C. Even if a Full Barker Analysis Was Conducted, the Trial Court
Would Not Have Erred in Finding No Violation ..........................................14
2. Appellant Cannot Show Ineffective Assistance of Counsel on Appeal
............................................................................................................25
Ineffective Assistance of Counsel Standard of Review on Appeal ......25
A. Appellant Cannot Show Ineffective Assistance from Mr. Zamora ..........29
B. Mr. Collins Was Not Ineffective for Failing to Dispute Credible
Evidence, Particularly Where Conviction for the "Lesser" Offense
Would Still Subject Appellant to the Same Range of Punishment ...............30
C. Mr. Collins Was Not Ineffective for Obtaining a Directed Verdict
on a Lesser-Included Offense When the "Lesser" Offense Had the Same
Range of Punishment .....................................................................................31
iii
D. Because Appellant's Suggested Lines of Inquiry Would Have Hurt
Him at Trial, Mr. Collins Was Not Ineffective for Failing to Further
Cross-Examine the Witness ...........................................................................34
E. Appellant Argues Outside the Record, and the Only Evidence in the
Record Indicates Mr. Collins Was Not Ineffective for Failing to
Investigate ......................................................................................................37
3. The Evidence Was Legally Sufficient to Establish That Appellant
Was a Party to the Theft and to Establish Value .....................................38
Prayer .......................................................................................................................47
Certificate of Service ...............................................................................................48
Certificate of Compliance ........................................................................................49
iv
Index of Authorities
Statutes, Rules & Secondary Sources
Tex. Crim. Proc. Code Ann. art. 12.01
(West, Westlaw through 2013 Sess.) ....................................................................... 13
Tex. Code Crim. Proc. Ann. art. 15.14
(West, Westlaw through 2013 Sess.) .................................................................11, 13
Tex. Code Crim. Proc. Ann. art. 21.09
(West, Westlaw through 2013 Sess.) ....................................................................... 45
42 Tex. Prac., Criminal Practice And
Procedure § 28:52 (3d ed.). ...................................................................................... 11
Cases
Bara v. Major Funding Corp. Liquidating
Trust, 876 S.W.2d 469 (Tex. App.—Austin
1994), writ denied (Nov. 3, 1994) ........................................................................... 23
Barker v. Wingo, 407 U.S. 514 (1972) ............................................................... 9, 18
Bollinger v. State, 224 S.W.3d 768 (Tex. App.
—Eastland 2007, pet. ref’d) ..................................................................................... 11
Brown v. State, 163 S.W.3d 818 (Tex. App.—
Dallas 2005, pet. ref’d) ............................................................................................ 14
Brown v. State, 866 S.W.2d 675 (Tex. App.—
Houston [1st Dist.] 1993, pet. ref’d) ........................................................................ 37
Byrd v. State, 336 S.W.3d 242 (Tex. Crim.
App. 2011) .............................................................................................................. 45
v
Cannon v. State, 668 S.W.2d 401 (Tex. Crim.
App. 1984)................................................................................................................ 27
Cantu v. State, 253 S.W.3d 273 (Tex. Crim.
App. 2008)................................................................................................................ 16
Carmona v. State, 880 S.W.2d 227 (Tex. App.
—Austin 1994), vacated on other grounds, 941
S.W.2d 949 (Tex. Crim. App. 1997). ...................................................................... 36
Coble v. State, 501 S.W.2d 344 (Tex. Crim. App.
1973) ........................................................................................................................ 35
Cothern v. State, 02-13-00466-CR, 2015 WL
2169248 (Tex. App.—Fort Worth May 7, 2015,
no. pet. h.) (not designated for publication) ............................................................ 45
Cowart v. State, 03-99-00518-CR, 2000 WL
1227781 (Tex. App.—Austin Aug. 31, 2000, no
pet.) (not designated for publication) ........................................................................ 8
Delrio v. State, 840 S.W.2d 443 (Tex.
Crim. App. 1992) .................................................................................................... 27
Dragoo v. State, 96 S.W.3d 308 (Tex.
Crim. App. 2003) ................................................................ 15, 16, 18, 19, 22, 24, 25
Druery v. State, 225 S.W.3d 491 (Tex. Crim.
App. 2007)................................................................................................................ 32
Ervin v. State, 331 S.W.3d 49 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d) ........................................................................ 38
Ex parte Countryman, 226 S.W.3d 435
(Tex. Crim. App. 2007)....................................................................12, 13, 14, 15, 29
Ex parte Martin, 6 S.W.3d 524 (Tex. Crim.
App. 1999)................................................................................................................ 11
vi
Ex parte Preston, 833 S.W.2d 515 (Tex. Crim.
App. 1992)................................................................................................................ 37
Ex parte Torres, 943 S.W.2d 469 (Tex. Crim.
App. 1997)................................................................................................................ 28
Felters v. State, 147 S.W.3d 488 (Tex. App.—
Fort Worth 2004, pet. ref’d) ...................................................................40, 41, 42, 43
Gonzales v. State, 435 S.W.3d 801 (Tex. Crim.
App. 2014) .............................................................................................................. 22
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim.
App. 2005) .............................................................................................................. 28
Green v. State, 14-08-00075-CR, 2009 WL
136917 (Tex. App.—Houston [14th Dist.] Jan.
20, 2009, no pet.) (mem. op., not designated for
publication) ............................................................................................................. 24
Griffis v. State, 441 S.W.3d 599 (Tex. App.—
San Antonio 2014) ................................................................................................... 29
Guevara v. State, 152 S.W.3d 45 (Tex. Crim.
App. 2004) .............................................................................................................. 40
Haynes v. State, 273 S.W.3d 183 (Tex. Crim.
App. 2008)................................................................................................................ 32
Henson v. State, 407 S.W.3d 764 (Tex. Crim.
App. 2013), cert. denied, 134 S. Ct. 934 (2014).................................................. 8, 17
Hernandez v. State, 127 S.W.3d 768 (Tex. Crim.
App. 2004)................................................................................................................ 23
Jackson v. State, 973 S.W.2d 954 (Tex. Crim.
App. 1998)................................................................................................................ 28
Jackson v. Virginia, 443 U.S. 307 (1979)................................................................ 39
vii
Kiffe v. State, 361 S.W.3d 104 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) ...........................................................38, 39, 46
Lehman v. State, 792 S.W.2d 82 (Tex. Crim.
App. 1990) .............................................................................................................. 45
Lopez v. State, 343 S.W.3d 137 (Tex. Crim.
App. 2011)................................................................................................................ 25
Mallett v. State, 65 S.W.3d 59 (Tex. Crim.
App. 2001)................................................................................................................ 27
Margraves v. State, 34 S.W.3d 912 (Tex.
Crim. App. 2000), abrogated on other grounds
by Laster v. State, 275 S.W.3d 512 (Tex. Crim.
App. 2009). .............................................................................................................. 40
Marin v. State, 851 S.W.2d 275 (Tex. Cr. App.
1993) ....................................................................................................................... 10
Mata v. State, 226 S.W.3d 425 (Tex. Crim. App.
2007) ......................................................................................................26, 27, 28, 38
McMann v. Richardson, 397 U.S. 759 (1970) ......................................................... 25
Menefield v. State, 363 S.W.3d 591 (Tex. Crim.
App. 2012)............................................................................................................... 26
Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App.
1992) ....................................................................................................................... 36
Owens v. State, 96 S.W.3d 668 (Tex. App.—Austin
2003, no pet.) .......................................................................................................... 11
Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App.
1995) ....................................................................................................................... 27
Perez v. State, 310 S.W.3d 890 (Tex. Crim. App.
2010) ........................................................................................................................ 26
viii
Phipps v. State, 630 S.W.2d 942 (Tex. Crim. App.
1982) ........................................................................................................................ 19
Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App.
1999) ........................................................................................................................ 32
Roberson v. State, (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d) ........................................................................................................ 40
Robertson v. State, 187 S.W.3d 475 (Tex. Crim.
App. 2006)................................................................................................................ 37
Romero v. State, 13-12-00188-CR, 2013 WL
7964212, at *2 (Tex. App.—Corpus Christi
Oct. 24, 2013, pet. ref’d) (mem. op., not
designated for publication) ................................................................................14, 21
Sanders v. State, 675 S.W.2d 622 (Tex. App.—Fort
Worth 1984, no pet.) ................................................................................................ 45
Schultz v. State, 255 S.W.3d 153 (Tex. App.—San
Antonio 2008, no pet.). ............................................................................................ 34
Smith v. Gohmert, 962 S.W.2d 590 (Tex. Crim.
App. 1998).................................................................................................................. 9
Starks v. State, 266 S.W.3d 605 (Tex. App.—El Paso
2008, no pet.) .....................................................................................................20, 21
State v. Condran, 951 S.W.2d 178 (Tex. App.—
Dallas 1997, pet. granted), petition dismissed as
improvidently granted, 977 S.W.2d 144) ................................................................ 14
Strickland v. Washington, 466 U.S. 668 (1984) ....................................25, 26, 27, 38
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App.
1999) ................................................................................................................. 26, 28
Tolbert v. State, 306 S.W.3d 776 (Tex. Crim. App.
2010) ....................................................................................................................... 32
ix
Tong v. State, 25 S.W.3d 707 (Tex. Crim. App.
2000) ........................................................................................................................ 27
Villani v. State, 116 S.W.3d 297 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) ..................................................................... 44
Whitehead v. State, 130 S.W.3d 866 (Tex. Crim.
App. 2004)................................................................................................................ 37
Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App.
2007) ....................................................................................................................... 17
Wood v. State, 4 S.W.3d 85 (Tex. App.—Fort Worth
1999, pet. ref’d) ..................................................................................................32, 33
Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App.
2002) ............................................................................................................14, 15, 21
x
Statement of the Case
Appellant helped steal a box of cigarettes from a New Braunfels CVS
Pharmacy on November 8, 2011 (see I C.R. at 10, 101). He was arrested just over a
week later on November 17, 2011 (I Supp. C.R. at 4). On February 27, 2012,
Appellant filed a 90-day writ (id. at 6). He was released on a personal recognizance
bond on March 8, 2012; the bond included the condition to not “commit any
offense against the laws of the State of Texas” (id. at 17-18).
On December 17, 2012, Appellant was arrested in Bexar County on another
theft charge (id. at 13). The Honorable Dib Waldrip issued a capias for Appellant’s
arrest and set his bond at $10,000 (id.). On February 22, 2013, Appellant mailed a
letter to the Comal County District Clerk in which he stated that he was
incarcerated in Bexar County and had been sentenced to six months in state jail on
another offense (id. at 20). He anticipated being shipped off to begin serving his
sentence within 21 to 30 days, and indicated he would be willing to plead guilty to
a state jail felony in Comal County to “clear up loose ends” (id.).
On May 10, 2013, Comal County took custody of Appellant (id. at 19). He
received his Magistrate’s warning on May 11, and he indicated he did not want to
request a court-appointed attorney (id. at 21). One month later on June 10, 2013,
Appellant filed a 180-day speedy-indictment writ requesting discharge and
dismissal of his case with prejudice (id. at 23, 26). Before any hearing on the writ
1
was held, an indictment was returned on August 14, 2013 (I C.R. at 10). Appellant
did not request a hearing on his writ or otherwise urge it before the trial court
immediately before his trial commenced (see III R.R. at 7-14). Following a trial to
a jury, Appellant was convicted of the offense of Theft > $1,500 < $20,000 on or
about June 10, 2014 (I C.R. at 101). The jury assessed his punishment at 15 years
in the institutional division of TDCJ (id.). Appellant timely filed his notice of
appeal (id. at 94).
Issues Presented
1. Where Appellant is incarcerated on another charge, acquiesces in the delay
and eventually requests that any trial be barred instead of asking for a speedy
trial, are his speedy-trial rights violated?
2. Can Appellant demonstrate ineffective assistance of counsel on appeal
where counsel’s strategies and motivations are not developed on the record
and the alternative strategies argued on appeal would at best lead to a
conviction for a similar offense with an equal range of punishment?
3. Can the evidence in Appellant’s case be legally insufficient to support his
conviction when – in viewing the evidence in the light most favorable to the
verdict – it cannot be said that no reasonable juror would have found the
evidence sufficient to prove Appellant’s guilt beyond a reasonable doubt?
2
Statement of Facts
In a video interview, Appellant confessed that he and Frank Parramore
routinely stole merchandise from local businesses before fencing it in San Antonio
(State’s Ex. 11, Part 3 at 15:15:45; Part 4 at 15:28:55, 15:29:20, 15:30:45; Part 5 at
15:31:30). On November 8, 2011, Appellant and Parramore went to steal razors
from a CVS pharmacy (III R.R. at 36; State’s Ex. 11, Part 1 at 15:10:00; Part 3 at
15:14:30). Between 7:30 and 8:00 p.m., Appellant and Parramore walked through
the entrance of the store, talking and laughing with each other (III R.R. at 37, 44-
46; State’s Ex. 5, Part 1).
Delores Rodriguez was working the 3:00 to 11:00 p.m. shift as the front-end
clerk that night (III R.R. at 36). She had to take care of customers, work the
register, assist people in the photo lab and check merchandise deliveries in (id. at
36, 38). The pharmacy was busy that evening (id. at 44). As she worked with a box
of cigarettes behind the counter, Ms. Rodriguez observed Appellant and Parramore
enter the store together (id. at 43, 45-47).
Appellant planned to distract Rodriguez while Parramore tried to steal
merchandise (State’s Ex. 11, Part 3 at 15:14:35). Appellant asked for help in the
photo lab, drawing Ms. Rodriguez away from the counter (III R.R. at 45; State’s
Ex. 5, Part 3). While Appellant kept Rodriguez occupied, Parramore slipped
behind the counter and grabbed a box full of cigarettes (State’s Ex. 5, Part 3; Part
3
4; III R.R. at 55). When Parramore ran back through the counter door, Rodriguez
heard it hit the wall and saw him with merchandise (III R.R. at 51, 54). As he ran
out the front door, she chased after him (State’s Ex. 5, Part 4). Appellant followed
them outside (id.).
Ms. Rodriguez caught up with Parramore near the highway (III R.R. at 54).
She yelled at him to give her back the merchandise (id. at 55). Parramore then set
the box down, turned around and looked at her as if “he was going to fight” (id.).
Fearing he was about to attack her, Rodriguez ran back to the store (id.). Parramore
picked up the box and left (id. at 55).
On her way back to the store, Ms. Rodriguez crossed paths with Appellant
(id. at 75). Rodriguez was familiar with thieves working in tandem; she believed
Appellant was working in concert with Parramore to distract her (id. at 83-84).
Appellant claimed he did not know what was happening (id. at 75). When
Rodriguez said she was calling the police, Appellant “took off” (id. at 75-76). In
his rush to get away, Appellant left his wallet and his cell phone in the pharmacy
(id. at 76-77; State’s Ex. 11, Part 4 at 15:17:20). Appellant never tried to retrieve
them – either from the store or the police – before trial (III R.R. at 77, 103).
Rodriguez had not yet taken any of the cigarette cartons out of the stolen box
(id. at 52). To provide police with an accurate dollar amount, she completed her
inventory that night and checked it against the invoice (id. at 65). The invoice was
4
created at the warehouse, where the merchandise had been counted prior to
shipping (id. at 53). Ms. Rodriguez had worked at the store for years (id. at 35).
She knew the invoices were accurate, and trusted them to give her the correct count
of the missing items (id. at 54). After completing her inventory, Rodriguez printed
out a receipt reflecting the stolen items and their value: 36 cartons had been stolen,
totaling $1,913.44 before tax (id. at 66).1
Appellant later told Detective Wahrmund that he was surprised Parrarmore
had stolen razors instead of cigarettes, and that he was mad that Parramore had not
given him a cut of the proceeds (id. at 119-20; State’s Ex. 11, Part 1 at 15:10:30;
Part 3 at 15:15:23). Appellant was indicted for Theft > $1,500 < $20,000 and for
Theft with Two or More Convictions for the Same Offense (I C.R. at 10). After
Appellant stipulated to the two prior convictions, both counts were second-degree
felonies with the same punishment range (id.; I Supp. C.R. at 5).
1
One such receipt was entered into evidence in the instant cause as State’s Exhibit 6 (V R.R. at
17).
5
Summary of the Argument
In his first point of error, Appellant apparently contends that the trial court
erred in failing to release him after he attempted to file a speedy trial writ two
months before he was indicted. Brief for Appellant at 19, 23-24. However,
Appellant failed to preserve this point of error because he never urged his writ,
obtained a hearing or ruling, or appealed any denial of his writ pretrial.
Furthermore, caselaw holds that the return of an indictment renders a speedy-
indictment writ moot. Finally, several factors – including Appellant’s expressed
desire to have no trial at all – support the finding that there was no speedy
indictment violation in any event.
In his second point of error, Appellant tries to demonstrate ineffective
assistance of counsel on appeal. Appellant’s complaint related to pretrial habeas
applications fails because he either cannot show the lack of a valid strategy or
prejudice. The record is likewise not sufficiently developed to address Appellant’s
other claims on appeal, particularly in light of the reasonable strategies that could
underlie his counsel’s actions. Finally, where Appellant’s remaining claims argue
his counsel should have attacked the value of the property stolen, the fact that in
that event the State could still have obtained a conviction on proof of a similar theft
offense with the same range of punishment precludes any finding of prejudice.
6
In his final point of error, Appellant apparently challenges the legal
sufficiency of the evidence to prove he was criminally responsible for the theft, the
legal sufficiency of the evidence supporting value, and the legal sufficiency of the
evidence with regard to the number of cigarette cartons in the box. First, a
comparison of the facts in Felters with the facts of Appellant’s case demonstrates
the evidence in the instant case was significantly greater than that found sufficient
in Felters. Additionally, there was significant and legally sufficient evidence
establishing the value of the stolen cartons. Finally, although this same evidence
would be sufficient to establish the number of cartons stolen, the number is not
actually an element and would not generally constitute a material variance.
7
1. Appellant’s Speedy Indictment Claim Fails Under Texas Case
Law
A. Appellant Failed to Preserve Any Error by Not Correctly Filing His
Application, Urging a Hearing, Obtaining a Ruling and Appealing Any
Adverse Ruling Pretrial.
The Court of Appeals noted the importance of bringing speedy-trial
applications to the attention to the trial court in Cowart v. State:
As a prerequisite to presenting a complaint for appellate review, the
record must show that the complaint was made in the trial court by a
timely request, objection, or motion stating grounds for the ruling that
the complaining party sought from the trial court, and the record must
show that the trial court ruled on the request, objection, or motion
either expressly or impliedly. See Tex. R. App. P. 33.1. A complaint
that a defendant was not given a speedy trial must be raised in the trial
court to preserve the complaint for appellate review.
03-99-00518-CR, 2000 WL 1227781, at *1 (Tex. App.—Austin Aug. 31, 2000, no
pet.) (not designated for publication) (citing Dunn v. State, 819 S.W.2d 510, 526
(Tex. Crim. App. 1991).
The Court of Criminal Appeals subsequently held in Henson v. State that
preservation requirements apply to speedy-trial claims. 407 S.W.3d 764, 768 (Tex.
Crim. App. 2013), cert. denied, 134 S. Ct. 934 (2014). Henson emphasized the
incentive a defendant has to sleep on his rights related to such claims: “[w]ithout a
requirement of preservation, a defendant would have great incentive not to insist
upon a speedy trial and then to argue for the first time on appeal that the
prosecution should be dismissed because of delay.” Id. at 769. The Court also
8
observed that preservation requirements furthered judicial efficiency; if the
appellant brought his complaint to the trial court’s attention first, the judge could
resolve any issues before the burden and expense of a trial and appeal. Id. Finally,
the Court observed that requiring the appellant to preserve the issue would result in
a sufficient record for any potential Barker analysis. Id.2 Two factors in particular
– the reason for the delay and the prejudice to the accused – are fact-specific
inquiries which need to be developed at a hearing in order for appellate courts to
accurately evaluate the issue. Id.
In the instant case, Appellant failed to correctly file his pretrial writ, and was
informed of the error by the district court clerk (I Supp. C.R. at 39). Though he
was informed of the error, Appellant did not thereafter attempt to re-file a
corrected application, nor did he urge a hearing or ruling on his defective
application pretrial (see generally I C.R., I Supp. C.R., III R.R. at 7-13, id. at 14
(where the trial court received a negative response when it asked “[a]nything else
we need to talk about?”). After Appellant was indicted, he filed no motion to
dismiss the indictment pursuant to Article 27.03. See Smith v. Gohmert, 962
2
Barker v. Wingo is the Supreme Court case which listed the factors to consider in evaluating
speedy-trial claims, including: 1) whether delay before trial was uncommonly long; 2) whether
the government or the criminal defendant is more to blame for that delay; 3) whether, in due
course, the defendant asserted his right to a speedy trial; and 4) whether he suffered prejudice as
the delay’s result. 407 U.S. 514, 531 (1972) (where the Court found the defendant was not
seriously prejudiced by five-year delay between arrest and trial and he did not want a speedy
trial, his right to a speedy trial was not violated). These factors are discussed in more detail infra
(at 15).
9
S.W.2d 590, 592 (Tex. Crim. App. 1998) (an appellant could appeal the erroneous
denial of such a motion post-trial).
Appellant’s failure to urge the dismissal of the indictment is particularly
glaring in light of the fact that the return of an indictment before a hearing will
often render speedy-indictment claims moot. See infra at 11-12. Appellant
committed his theft offense on or about November 8, 2011, and his indictment was
returned on August 14, 2013. I C.R. at 10. Because any dismissal would be without
prejudice and the three-year statute of limitations had not expired, even after any
potential discharge, Appellant would simply have been re-indicted and rearrested.
See infra at 11-12. In light of the foregoing, the trial court – if it was aware of the
application at all – may have reasonably believed Appellant had decided not to
pursue the issue further after consulting with his counsel.
As in Henson, Appellant may not raise the issue on appeal after failing to
urge his claim at trial, failing to request a hearing to develop the Barker factors and
failing to obtain a ruling. Henson, 407 S.W.3d 764, 768. “[u]nless a litigant ...
moves to avail himself of a procedural benefit ... no such benefit inures.... Because
the judge has no independent duty in this regard, his failure ... isn’t error about
which complaint might later be made on appeal.” Id. at 767 (citing Marin v. State,
851 S.W.2d 275, 278 (Tex. Cr. App. 1993)). Had Appellant complied with the
preservation requirements, the trial court could have granted “the appropriate
10
remedy before the expense and other burdens of a trial (and an appeal)” were
incurred. Id. at 769; cf. Owens v. State, 96 S.W.3d 668, 673 (Tex. App.—Austin
2003, no pet.) (failure to obtain adverse ruling to jury argument objections waived
error); Bollinger v. State, 224 S.W.3d 768, 778 (Tex. App.—Eastland 2007, pet.
ref’d) (failure to obtain a ruling on a motion to suppress waived any error).
Furthermore, because the only relief available would have been pretrial liberty,
Appellant cannot receive relief on post-conviction appeal.3 Appellant has failed to
preserve his first point of error for review, and the Court should overrule it.
B. Even if Appellant had Preserved the Issue, His Claim Was Moot When an
Indictment Was Returned Before Any Hearing on His Application.
Under former articles 32.01 and 28.061, dismissal for delay was with
prejudice. Ex parte Martin, 6 S.W.3d 524, 529 (Tex. Crim. App. 1999). Now,
however, an appellant may be rearrested following such a dismissal when an
indictment is returned. Tex. Code Crim. Proc. Ann. art. 15.14 (West, Westlaw
3
The Texas Practice Series observes that for speedy-indictment claims under article 32.01:
Habeas corpus was undoubtedly the most appropriate vehicle during the 1987-
1997 period.
Under the statutory scheme as amended in 1997, habeas corpus is also clearly
available. Since the only relief is essentially pretrial liberty, appeal from any
conviction that followed could not provide that relief.
42 Tex. Prac., Criminal Practice And Procedure § 28:52 (3d ed.).
11
through 2013 Sess.); Ex parte Countryman, 226 S.W.3d 435, 438 (Tex. Crim. App.
2007).
In Ex parte Countryman, the appellant filed an application to have his case
dismissed before the indictment was returned. Id. at 436. The trial court denied the
application, and the appellant appealed. Id. The court of appeals relied on Martin
and reversed the trial court. Id. The Court of Criminal Appeals distinguished
Martin, however; among other factors, it observed that prosecution was barred in
Martin unless the State showed good cause for the delay. Id. at 438. The Court
considered the totality of the circumstances, including the fact that the dismissal
would be without prejudice, the appellant was not eligible for release on bond, an
indictment was returned immediately after the application was filed, and the
appellant could have simply been rearrested under Article 15.14. Id. at 438-39. In
stark contrast to Martin, where a lack of good cause would result in a dismissal
with prejudice, Ex parte Countryman observed that under the current statutes “it
does not matter whether the State shows good cause for the delay because even a
determination that the State did not show good cause would not provide a remedy
to Appellant.” Id. at 439. The Court of Criminal Appeals found the trial court had
not erred in holding the claim was moot. Id.
In the instant case, even if Appellant had preserved his claim, Ex parte
Countryman would preclude relief. The dismissal in the instant cause would
12
likewise be without prejudice. See id. at 438. Whereas in Ex parte Countryman the
appellant was ineligible for release on bond, here, Appellant was free on a personal
recognizance bond until he was arrested in Bexar County on December 17, 2012 (I
Supp. C.R. at 13). Furthermore, Appellant admitted in his correspondence with the
Comal District Clerk that he was “presently incarcerated in the Bexar County Jail”
on February 22, 2013, had been sentenced to six months in state jail, and might
leave for the jail “within 21 to 30 days” (I Supp. C.R. at 20). Even if Appellant had
been “released” from the Comal charge, practically, he would still have been
confined in state jail on the Bexar County offense. Whereas the indictment in Ex
parte Countryman was returned a little more than a week after the application was
filed (226 S.W.3d at 436), in the instant cause, the indictment was returned just
over two months after the application was filed – presumably while Appellant was
still serving time on his Bexar County offense (I C.R. at 10). Finally, just as in Ex
parte Countryman, Appellant could simply have been re-indicted and rearrested in
the event he was “released” from the Comal charge. See Tex. Code Crim. Proc.
Ann. Art. 15.14; Tex. Crim. Proc. Code Ann. art. 12.01 (West, Westlaw through
2013 Sess.) (statute of limitations for theft is five years); I C.R. at 10 (theft was
committed on or about November 8, 2011).
Even assuming arguendo the Appellant obtained an adverse ruling from the
trial court, it would not have erred in finding his claim moot in such circumstances.
13
See Ex parte Countrymen, 226 S.W.3d at 439 (noting the futility of dismissing an
indictment when it merely forced the State to waste resources and grand jury time
by reindicting the appellant); see also State v. Condran, 951 S.W.2d 178, 192
(Tex. App.—Dallas 1997, pet. granted), petition dismissed as improvidently
granted, 977 S.W.2d 144) (holding article 32.01 complaint is moot if not ruled on
prior to indictment). Accordingly, the Court should overrule Appellant’s first point
of error.
C. Even if a Full Barker Analysis Was Conducted, the Trial Court Would Not
Have Erred in Finding No Violation.
Although Ex parte Countryman would be the proper analysis if Appellant
had preserved his speedy-indictment claim, notably, even under a full Barker v.
Wingo analysis, his claim would fail. Because Appellant only complains of pre-
indictment delay (Brief for Appellant at 19), the Court does not need to consider
post-indictment delay, if any. See Romero v. State, 13-12-00188-CR, 2013 WL
7964212, at *2 (Tex. App.—Corpus Christi Oct. 24, 2013, pet. ref’d) (mem. op.,
not designated for publication) (citing Brown v. State, 163 S.W.3d 818, 822 (Tex.
App.—Dallas 2005, pet. ref’d)).
Courts will employ a bifurcated standard of review for speedy-trial claims,
including “an abuse of discretion standard for the factual components, and a de
novo standard for the legal components.” Zamorano v. State, 84 S.W.3d 643, 648
14
(Tex. Crim. App. 2002). Where an appellant loses on his speedy-trial claim,
reviewing courts will presume the trial court resolved any disputed facts in favor of
the State, and will defer to any implied findings supported by the record. Id. Courts
must use a balancing test “in which the conduct of both the prosecution and the
defendant are weighed.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App.
2003). The Barker factors to consider include:
1) “whether delay before trial was uncommonly long;”
2) “whether the government or the criminal defendant is more to
blame for that delay;”
3) “whether, in due course, the defendant asserted his right to a speedy
trial;” and
4) “whether he suffered prejudice as the delay’s result.”
Zamorano v. State, 84 S.W.3d at 648 (citing Barker v. Wingo, 407 U.S. at 530).
At the outset of the analysis, it is important to note that Appellant requested
relief which was not technically available. In his application, Appellant included
the following prayer for relief:
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that a
Writ of Habeas Corpus Issues and have Petitioner brought before this
Court instanter to end the illegal confinement and be Discharged for
Delay barring further prosecution.
(I Supp. C.R. at 26) (emphasis added); but see Ex parte Countryman, 226 S.W.3d
at 439 (dismissal no longer bars prosecution). As noted in Romero, “[f]iling for a
dismissal instead of a speedy trial will generally weaken a speedy-trial claim
15
because it shows a desire to have no trial instead of a speedy one.” 2013 WL
7964212, at *3 (citing Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App.
2008)). Accordingly, Appellant’s claim is weakened by his explicit request to bar
any trial. Additionally, because Appellant only asked for relief which was not
available, the trial court would not have erred in denying his application on this
ground.
The first Barker factor – the length of the delay – is measured from the time
the defendant is arrested or formally accused. Dragoo v. State, 96 S.W.3d at 313.
Courts will generally presume delays approaching one year to be sufficient to
trigger the Barker enquiry. Id. (finding the three-and-a-half-year delay sufficient).
In the instant case, the offense was alleged to have occurred on or about November
8, 2011, though Appellant was not arrested until November 17, 2011 (I C.R. at 10;
I Supp. C.R. at 4). The indictment was returned on August 14, 2013, less than one
year and nine months later (id.). Therefore, for the purposes of this argument, the
State will presume the Barker enquiry was triggered.
The next factor to consider is the reason for the delay. Where the State offers
the trial court no reason for the delay, this factor weighs in favor of finding a
violation, though “this factor does not weigh heavily in favor of such a finding.”
Dragoo, 96 S.W.3d at 314 (emphasis in original). Notably, however, Dragoo
involved a hearing where the State failed to offer any explanation. Id. at 312.
16
Appellant in the instant case failed to ask for a hearing or obtain findings (III R.R.
at 14). As Henson observed, the preservation requirements should apply to speedy-
trial claims to ensure an adequately developed record for fact-specific Barker
inquiries including “the reason for the delay and the prejudice to the accused.” 407
S.W.3d at 769.
In the instant case, as noted supra, Appellant was presumably still serving
his state jail sentence on the Bexar County offense at the time of the indictment (I
Supp. C.R. at 20). See Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007)
(absent findings, a reviewing court must “view the evidence in the light most
favorable to the trial court’s ruling and assume it made implicit findings of fact that
support its ruling as long as those findings are supported by the record.”).
Furthermore, Appellant did not request a “speedy indictment” until June 10, 2013
– almost one year and seven months after his arrest (I Supp. C.R. at 23; id. at 4). In
such circumstances, the trial court would not have erred in finding the indictment –
filed well within the five-year statute of limitations – was not unreasonably
delayed.
Because Appellant did not request a hearing or findings, and because –
viewing the evidence in the light most favorable to the trial court’s “ruling” –
implicit findings drawn from the record could support a finding of reasonable
delay, factor two should weigh against Appellant’s claim. In any event,
17
Appellant’s failure to develop the record at a hearing should not be held against the
State.
When dealing with factor three – the defendant’s assertion of his right –
courts have noted that “failure to assert the right … make[s] it difficult for a
defendant to prove he was denied a speedy trial.” Barker, 407 U.S. at 532. “This is
so because a defendant’s lack of a timely demand for a speedy trial ‘indicates
strongly that he did not really want a speedy trial.’” Dragoo, 96 S.W.3d at 314.
Dragoo found it highly significant that the appellant in that case waited three-and-
a-half years – until just before trial – to assert his right. Id. Because the Court
viewed this as a strong indication that the appellant did not want a speedy trial, this
factor weighed “very heavily against a finding of the speedy trial right.” Id. at 315.
In the instant case, Appellant waited almost one year and seven months to
file his speedy-indictment writ, and he was indicted two months later (I Supp. C.R.
at 23; id. at 4; I C.R. at 10). Under Dragoo, this in itself is sufficient to be
considered a strong indication Appellant did not want a speedy trial. See 96
S.W.3d at 314. However, Appellant further explicitly requested that any
prosecution related to his offense be completely barred (I Supp. C.R. at 26). Where
this factor in Dragoo was found to weigh “very heavily” against that defendant, in
light of the express statement in the instant case that Appellant did not want a
speedy trial, this factor should weigh even more strongly against his claim. See 96
18
S.W.3d at 315; see also Phipps v. State, 630 S.W.2d 942, 946 (Tex. Crim. App.
1982) (where a defendant demonstrated no prejudice by a four-year delay between
arrest and trial and he waited until one month before trial to assert his right to a
speedy trial, his right to speedy trial was not violated).
The fourth factor addresses prejudice to the defendant resulting from the
delay. Dragoo, 96 S.W.3d at 315. Dragoo noted that the appellant in that case was
in prison serving a life sentence for murder, and that under those circumstances the
Court was mainly concerned with whether his ability to defend himself was
prejudiced by the delay. Id. While Appellant was apparently likewise serving a
state jail sentence for part of the complained-of time period, he was also free on a
personal-recognizance bond from March 8, 2012 (I Supp. C.R. at 17) until he was
arrested for a Bexar County offense on December 17, 2012 (I Supp. C.R. at 13).
Notably, Appellant did not present any arguments regarding prejudice to the trial
court (see I Supp. C.R. at 23-27). Appellant now presents arguments in his brief on
appeal; however, Dragoo noted that “appellant presented no evidence to the trial
court that showed his defense was prejudiced.” 96 S.W.3d at 314-15 (noting the
court of appeals erred in finding prejudice based on an argument the appellant
never made to the trial court). Appellant has waived his arguments regarding
prejudice. See id.
19
Furthermore, if the Court did not find, a further analysis of the fourth factor
does not favor Appellant. “[E]ven where the delay is presumptively prejudicial, the
defendant must nevertheless show that he has, in fact, been prejudiced.” Starks v.
State, 266 S.W.3d 605, 612 (Tex. App.—El Paso 2008, no pet.). While a showing
of actual prejudice is not required, the defendant must make a prima facie showing
of prejudice from the delay. Id. Notably, “the presumption of prejudice is
diminished by the defendant’s acquiescence in the delay.” Id. An assessment of
prejudice requires courts to look to the interests the right is designed to protect,
including “(1) preventing oppressive pretrial incarceration, (2) minimizing the
anxiety and concern of the accused, and (3) limiting the possibility that the defense
will be impaired.” Id. Of these, the third interest is the most important. Id.
Although Appellant claims he was incarcerated for nearly the entire time
(Brief for Appellant at 28), as noted supra, he was actually free on a personal
recognizance bond for over nine months, until he was arrested and jailed related to
a Bexar County offense. Furthermore, Appellant received jail-time credit for the
time periods a Comal County hold was placed on him (I C.R. at 101). See Starks,
266 S.W.3d at 613 (where appellant pled guilty and received full credit for the time
he had spent in jail, his twenty-five-month pretrial incarceration was not
oppressive); I Supp. C.R. at 20 (where Appellant, in correspondence with the
20
district clerk, expressed a willingness to plead guilty to the state jail felony
offense). Appellant’s pretrial incarceration was not oppressive.
On the issue of anxiety, because Appellant never requested a hearing or
made arguments to the trial court, even more than in Starks he has “failed to
introduce any evidence that the anxiety he suffered either was abnormal or caused
his case prejudice.” Starks, 266 S.W.3d at 613. “[E]vidence of generalized anxiety,
though relevant, is not sufficient proof of prejudice under the Barker test,
especially when it is no greater anxiety or concern beyond the level normally
associated with a criminal charge or investigation.” Cantu, 253 S.W.3d at 286.
Additionally, as noted Appellant was incarcerated for much of the time period on
another offense, was sentenced to six months in state jail on said offense, and was
apparently unemployed (see State’s Exhibit 11, Part 2 at 15:11:55, 15:13:00
[Appellant has been disabled since 2007]). 4 Where an appellant admits he was
unemployed at arrest, that cuts against claims of anxiety. Romero, 2013 WL
7964212 at *4 (citing as analogous Zamorano, 84 S.W.3d at 654 (noting, among
other things, that the delay interfered with the appellant’s job)). In such
circumstances, Appellant was not subject to anxiety. See Starks, 266 S.W.3d at
613.
4
Since different software may time playback differently, all references to video playback times
refer to the video’s embedded clock.
21
With regard to the final interest, as in Dragoo, Appellant presented no
evidence to the trial court that showed his defense was prejudiced. See 96 S.W.3d
at 315. On appeal, Appellant argues that memories and evidence fade over time.
Brief for Appellant at 28-29. However, because “time can tilt the case against
either side … one cannot generally be sure which [party] it has prejudiced more
severely.” Gonzales v. State, 435 S.W.3d 801, 813 (Tex. Crim. App. 2014)
(involving a speedy-trial motion filed one month after arrest). If anything, because
the State has the burden to prove its case beyond a reasonable doubt, delay would
seem to be more likely to prejudice the State.
Appellant complains that because of the delay, a store clerk witness – Ms.
Rodriguez – relied “solely on the ledger” to indicate the number of cartons missing
from the store. Brief for Appellant at 29. However, Ms. Rodriguez testified that she
created the receipt the night of the theft after checking in all of her inventory (III
R.R. at 67). Furthermore, the witness testified that based on her experience, she
trusted the invoices to accurately reflect the product shipments (id. at 54). Ms.
Rodriguez also demonstrated independent recall of the offense (see, e.g., id. at 51
[where she remembers trying to remove the memory card from Appellant’s phone
and hearing the counter door hit the wall], 55 [where she remembers the product
box was full]). Additionally, as described in the statement of facts supra, there was
22
overwhelming video evidence of the thefts, along with Appellant’s recorded
confession.
Although Appellant also complains generally of fading memories and
evidence, the Legislature has determined that a five-year delay is not overly
prejudicial in theft cases. Tex. Crim. Proc. Code Ann. § art. 12.01(4). Furthermore,
Appellant was arrested for the offense less than a month after it happened, and was
made aware of the need to seek and preserve evidence for his defense very close to
the time of the offense (I Supp. C.R. at 4).5 As the Court of Appeals has observed:
The primary purpose of a statute of limitations is to ensure that claims
are asserted within a reasonable time, giving the opposing party a fair
opportunity to prepare a defense while evidence is still available. A
statute of limitations also ensures that notice of claims is given to
adverse parties in order to prevent “fraudulent and stale claims from
springing up at great distances of time and surprising the other party.”
Bara v. Major Funding Corp. Liquidating Trust, 876 S.W.2d 469, 472 (Tex.
App.—Austin 1994), writ denied (Nov. 3, 1994) (internal citations omitted) (in a
case involving certified class actions, where “the defendant has been made aware
of the need to preserve evidence and witnesses with respect to the claims,” tolling
did not contravene the purpose of statute of limitations) (citing Am. Pipe & Const.
Co. v. Utah, 414 U.S. 538 (1974)); see also Hernandez v. State, 127 S.W.3d 768,
5
Appellant was free on a PR bond for nine months after his Comal County arrest before his
subsequent arrest for theft in Bexar County (id. at 13, 17). Notably, Appellant also moved for a
continuance, further delaying trial (I Supp. C.R. at 43).
23
772 (Tex. Crim. App. 2004) (allowing prior indictments for similar offenses to toll
the statute of limitations did not defeat their purpose, because if “the defendant has
adequate notice of a charge, he can preserve those facts that are essential to his
defense”); Green v. State, 14-08-00075-CR, 2009 WL 136917, at *3 (Tex. App.—
Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op., not designated for
publication) (“because both the prior and subsequent indictments pertained to the
same conduct stemming from the same transaction, appellant had adequate notice
to defend against the charges and preserve the facts that were essential to his
defense.”).
Appellant cannot show prejudice when – had the State taken no action at all
– he could have been prosecuted without warning at an even later date under the
statute of limitations. His position becomes even more untenable in light of the fact
that he was aware of his need to preserve evidence less than a month after the
offense and was free on a PR bond for nine months before he was rearrested.
Finally, just as in Dragoo, any presumption of prejudice “is extenuated by
[Appellant’s] longtime acquiescence in the delay.” See 96 S.W.3d at 315.
Accordingly, the fourth factor likewise weighs against finding any violation of his
speedy trial right. See id. at 315-16.
In Dragoo, the Court found that the excessive delay and the State’s failure to
offer any reason for the delay weighed in favor of finding a violation. Id. at 316.
24
The Appellant’s failure to demonstrate prejudice and his acquiescence during a
large majority of the delay weighed against such a finding. Id. On balance, the
Court found the factors weighed against finding a violation. Id. The balance of the
factors in the instant case likewise weigh against such a finding. Even if the delay
was excessive as in Dragoo, the Appellant’s failure to urge the trial court to hold a
hearing and develop evidence on the reasons for the delay should weigh against his
claim. Regardless, Appellant’s clearly expressed desire to have no trial, his
acquiescence in the delay and his failure to demonstrate prejudice tip the balance
against finding a speedy trial violation even more decisively than in Dragoo. See
id. Accordingly, Appellant’s first point of error should be overruled.
2. Appellant Cannot Show Ineffective Assistance of Counsel on
Appeal
Ineffective Assistance of Counsel Standard of Review on Appeal
The Sixth Amendment right to effective assistance of counsel does not
provide a right to errorless counsel; it is a right to objectively reasonable
representation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Strickland v. Washington,
466 U.S. 668, 686 (1984)). To prevail on a claim of ineffective assistance of
counsel, an appellant must satisfy both prongs of Strickland, demonstrating both
25
deficient performance by counsel as well as prejudice suffered by the defendant
because of counsel’s alleged deficient performance. 466 U.S. at 687; Menefield v.
State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).
Under the first prong, the Applicant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 687–88. To satisfy the second prong of
Strickland, the Applicant has to show the existence of a reasonable probability –
one sufficient to undermine confidence in the outcome – that but for counsel’s
deficient performance, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694. Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim.
Strickland, 466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010).
“It is not sufficient that the appellant show, with the benefit of hindsight, that
his counsel’s actions or omissions during trial were merely of questionable
competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). In
making its assessment of counsel’s assistance, the reviewing court examines the
totality of the representation and the circumstances of each case without the benefit
of hindsight. Lopez, 343 S.W.3d at 142-43; Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999); Garcia v. State, 57 S.W.3d 436, 430 (Tex. Crim. App.
26
2001). The reviewing court must presume that counsel is better positioned to judge
the pragmatism of the particular case, and that he “made all significant decisions in
the exercise of reasonable professional judgment.” Delrio v. State, 840 S.W.2d
443, 447 (Tex. Crim. App. 1992) (citing Strickland v. Washington, 466 U.S. at
690).
Reviewing courts will indulge in a strong presumption that trial counsel’s
performance was reasonable. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995). The “[a]ppellant has the burden of proving ineffective assistance by a
preponderance of the evidence.” Id. (citing Cannon v. State, 668 S.W.2d 401 (Tex.
Crim. App. 1984)). The Court has also noted that “the presumption that trial
counsel’s performance was reasonably based in sound trial strategy, coupled with
the absence of any supporting evidence in the record of unreasonableness, compels
a reviewing court to consider ways in which trial counsel’s actions were within the
bounds of professional norms.” Mata, 226 S.W.3d at 431.
To prevail on a claim of ineffective assistance of counsel, an appellant must
provide a record that affirmatively demonstrates that defense counsel’s
performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001). If the appellate record is silent regarding the reasons for
defense counsel’s conduct, then it is insufficient to overcome the presumption that
counsel was following a legitimate strategy. Tong v. State, 25 S.W.3d 707, 714
27
(Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813–14; Jackson v. State, 877
S.W.2d at 771 (refusing to hold counsel’s performance deficient given the absence
of evidence concerning counsel’s reasons for choosing the course he did).
As the Court stated in Ex parte Torres, “[i]n most instances, the record on
direct appeal is inadequate to develop an ineffective assistance claim.” 943 S.W.2d
469, 475 (Tex. Crim. App. 1997) (internal citations omitted). The Court has noted
that “trial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective. Absent such an opportunity, an
appellate court should not find deficient performance unless the challenged
conduct was ‘so outrageous that no competent attorney would have engaged in it.’”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2007)).
Accordingly, the Court has repeatedly held that post-conviction writs of
habeas corpus are the more appropriate or preferable means of raising a claim of
ineffective assistance of counsel. See, e.g., Rylander, 101 S.W.3d at 110-11;
Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Mata, 226 S.W.3d
at 430 (“[t]he lack of a clear record usually will prevent the appellant from meeting
the first part of the Strickland test, as the reasonableness of counsel’s choices and
motivations during trial can be proven deficient only through facts that do not
normally appear in the appellate record”).
28
A. Appellant Cannot Show Ineffective Assistance from Mr. Zamora.
Appellant first complains of Mr. Zamora’s representation. To the extent
Appellant complains of Zamora’s representation related to article 17.151, he
cannot show prejudice. Appellant was released on a PR bond after filing a 90-day
writ (I Supp. C.R. at 17). As to Appellant’s ineffective assistance claim related to
the failure to file a 180-day writ (Brief for Appellant at 32), as mentioned,
dismissal no longer bars prosecution. Ex parte Countryman, 226 S.W.3d at 439.
Griffis v. State, 441 S.W.3d 599, 606 (Tex. App.—San Antonio 2014), petition for
discretionary review refused (Nov. 19, 2014) (“reasonably competent counsel need
not perform a useless or futile act”). If his case had been dismissed, he would
simply been indicted and rearrested. Appellant presumably did not urge dismissal
at trial for this reason.
Furthermore, Appellant was free on a PR bond until he was arrested for a
Bexar County offense on December 17, 2012 (I Supp. C.R. at 13). He was
sentenced to six months in state jail for the Bexar County offense, and obtained
jail-time credit for the amount of time a Comal County hold was placed on him
(see I C.R. at 101). Because in certain circumstances he might obtain jail-time
credit for multiple offenses – effectively serving time cumulatively – Appellant
might have made the strategic decision not to pursue dismissal of the Comal
offenses since he would be serving time in jail regardless. See Nixon v. State, 572
29
S.W.2d 699, 701 (Tex. Crim. App. 1978) (an appellant is “confined ‘on said
cause’” when a hold is lodged against him). When Appellant eventually filed a
180-day writ – requesting dismissal with prejudice – the State procured an
indictment, making his claim moot. Because Mr. Zamora’s reasons for not filing
the 180-day writ are not apparent – and given how futile such dismissals are in
Appellant’s circumstances – Appellant cannot show ineffective assistance related
to Mr. Zamora’s representation.
B. Mr. Collins Was Not Ineffective for Failing to Dispute Credible Evidence,
Particularly Where Conviction for the “Lesser” Offense Would Still Subject
Appellant to the Same Range of Punishment.
Appellant argues Mr. Collins was ineffective for not arguing against the
value of the stolen property. Brief for Appellant at 34. However, the evidence
introduced at trial was clear and reliable. Ms. Rodriguez, the store clerk, testified
that in her experience she had found the delivery invoices to be accurate, and that
she trusted them to accurately reflect the products delivered to the store. III R.R. at
54. She had not put any cigarettes on the shelf (id. at 52) and she testified that the
stolen box was full (id. at 55). Further, she created the receipt listing the stolen
items close in time to the offense – in fact, on the night of the theft after
completely checking in her inventory (id. at 67).
30
Counsel observed the witness’s testimony at trial, and was best positioned to
determine how to approach the testimony in front of the jury. See Delrio, 840
S.W.2d at 447. If the cashier’s testimony appeared to be credible, trying to attack it
before the jury could easily backfire (see also III R.R. at 131 [where Mr. Collins
stated he had “no intention of arguing” it was a lesser value]). This is particularly
true in the instant case; even if Appellant could successfully show the value was
less than $1,500, the State had already prepared for that contingency (see I C.R. at
10). Appellant’s value argument therefore fails – the State would simply have
convicted him under Count II. Notably, even if Appellant had been convicted of
theft involving an amount less than $1,500 under Count II of the indictment,
Appellant would still be subject to the same punishment range because of his two
prior convictions (see id.).
C. Mr. Collins Was Not Ineffective for Obtaining a Directed Verdict on a Lesser-
Included Offense When the “Lesser” Offense Had the Same Range of
Punishment.
Appellant next argues that his counsel was ineffective for excluding the
lesser-included offense from consideration. Brief for Appellant at 35. Under the
doctrine of invited error, Appellant could not generally complain of an error he
induced at trial. “The rule of invited error in jury charges is one of long standing
…. [courts] will not permit [an] appellant to complain of the trial court’s deleting a
31
jury charge as he requested.” Prystash v. State, 3 S.W.3d 522, 531-32 (Tex. Crim.
App. 1999); see also Druery v. State, 225 S.W.3d 491, 505-06 (Tex. Crim. App.
2007) (where defendant – after affirmatively advising the trial judge he did not
want a charge on a lesser-included offense – was estopped by the equitable
doctrine of invited error from complaining of an action it induced). Although
Appellant attempts to circumvent the rule by couching his argument in terms of
ineffective assistance, in the particular circumstances of his case, it cannot be
ineffective assistance to exclude criminal liability for one of two charged theories
with equal punishment ranges.
Courts have observed that it may be a legitimate strategy to pursue an all-or-
nothing tactic with lesser-included offenses. Tolbert v. State, 306 S.W.3d 776, 781
n.9 (Tex. Crim. App. 2010) (lesser-included offense instructions “frequently
depend upon trial strategy and tactics”). “Regardless of which side chooses to ‘go
for broke,’ it may be a valid strategic choice from which neither side should be
rescued.” Id. at 782 (citing Haynes v. State, 273 S.W.3d 183, 191 (Tex. Crim. App.
2008) (Johnson, J., concurring)).
Appellant asserts that counsel is per se ineffective when a request for an
instruction on a lesser-included offense is not made, if the trial judge would have
erred in refusing it. Brief for Appellant at 35-36 (citing Wood v. State, 4 S.W.3d
32
85, 87 (Tex. App.—Fort Worth 1999, pet. ref’d). However, Wood actually states
that:
[a] defense attorney’s failure to request a jury instruction can render
his assistance ineffective if, under the particular facts of the case, the
trial judge would have erred in refusing the instruction had counsel
requested it …. [h]owever, it may be reasonable trial strategy not to
request a charge on a lesser-included offense.
4 S.W.3d at 87 (emphasis added). Wood went on to observe that there was some
question as to whether that counsel had attempted an all-or-nothing tactic. Id. at 88.
Because that appellant had not filed a motion for new trial and developed a record
on his ineffective assistance claim, the court held that he could not “overcome the
strong presumption that trial counsel’s [all-or-nothing] strategy was reasonable
from counsel’s perspective at trial.” Id.
The strong presumption that Mr. Collins’ strategy was reasonable is only
reinforced by the fact that conviction of the “lesser” offense in the instant case
would have subjected Appellant to the same range of punishment. See I C.R. at 10,
46 (where Appellant recognized in his Motion for Severance that the two counts
had identical punishment ranges); III R.R. at 124. In such circumstances, it cannot
be unreasonable to reduce the number of theories upon which Appellant could be
found guilty. Additionally, though Mr. Collins was equitably and judicially
33
estopped from arguing the value was less than $1,500,6 there was still some chance
the jury might determine the State had not met its burden to prove the value was
more than $1,500. See, e.g., II R.R. at 96-97 (where Mr. Collins emphasized in voir
dire that the jury had to find Appellant “not guilty” if the State failed to prove
every element of its case beyond a reasonable doubt); III R.R. at 31-33 (where Mr.
Collins asked the jury to “keep notes” and make sure the State met its burden on
each element, because one element would be missing).
D. Because Appellant’s Suggested Lines of Inquiry Would Have Hurt Him at
Trial, Mr. Collins Was Not Ineffective for Failing to Further Cross-Examine
the Witness.
Appellant claims Mr. Collins was ineffective for failing to cross-examine
Ms. Rodriguez, the CVS clerk, regarding “blatant discrepancies” in her testimony.
Brief for Appellant at 38. In particular, Appellant claims “the date and time stamp
6
To obtain a directed verdict on Count II, Mr. Collins argued there was “no evidence” that
anything less than $1,500 had been stolen (III R.R. at 124). Appellant claims that Mr. Collins
thereafter “unnecessarily agreed not to argue the amount to be less than the greater charge”
(Brief for Appellant at 36). Appellant could not equitably argue there was no evidence of the
lesser value to the judge, obtain a directed verdict, and argue it was a lesser value to the jury.
Courts have observed that:
A party may be estopped from taking a position that is inconsistent with that
party’s prior conduct. See Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App.
2003) (holding the State was estopped from challenging admissibility of defense
exhibits which were certified copies of criminal records summarized in rap sheet
produced by State); see also Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim.
App. 2003) (defendant was estopped from raising issue on appeal that trial court’s
discharge of juror was inappropriate where defendant himself proposed discharge
as alternative to mistrial).
Schultz v. State, 255 S.W.3d 153, 155 (Tex. App.—San Antonio 2008, no pet.).
34
on ledger” controvert the witness’s assertion that she made document on the night
of the theft. Id. The theft occurred on November 8, 2011 (III R.R. at 36) between
7:30 and 8:00 p.m. (id. at 37, 44). Ms. Rodriguez testified that she made State’s
Exhibit 6 on the night of the theft (id. at 66-67). The time stamp on the receipt in
evidence indicates it was printed out at 10:54 a.m. on the morning of November 9,
2011 (V R.R. at 17 – State’s Ex. 6). Outside the presence of the jury, the witness
had likewise indicated she printed a receipt out on the night of the theft for the
police (III R.R. at 59). A police report from the incident apparently indicated a
receipt had been printed out, and Detective Wahrmund testified that he received a
receipt totaling $1,913.44 during his investigation (id. at 61, 121). Ultimately, even
if only once such receipt was made early on the morning of November 9 (as
opposed to late at night on November 8) Appellant has failed to show how this
would create “reasonable doubt” as to the accuracy of the receipt. Mr. Collins
could reasonably have determined such cross-examination would be pointless or
harmful if the jury thought he was contesting trivialities.
Appellant next complains about Mr. Collins’ lack of inquiry into the clerk’s
knowledge of how many cartons were taken and the reliability of the ledger. Brief
for Appellant at 38. Frequently, however, “the decision to not cross-examine a
witness is the result of wisdom acquired by experience in the combat of trial.”
Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973). Furthermore,
35
“[c]omplete absence of cross-examination may be a legitimate strategy if a cross-
examination would only serve to reinforce the prosecution’s theory.” Carmona v.
State, 880 S.W.2d 227, 236 (Tex. App.—Austin 1994), vacated on other grounds,
941 S.W.2d 949 (Tex. Crim. App. 1997).
In the instant case, Mr. Collins did generally inquire into the capacity of the
boxes:
[Mr. Collins]: “So there’s 60 cartons inside the one box?”
[Ms. Rodriguez]: “It varies.”
….
[Mr. Collins]: “And that box, based on your inventory, you showed that
there were 36 cart – cartons in that box?”
[Ms. Rodriguez]: “Yes.”
III R.R. at 79-80; see also id. at 53 (inventories are checked once already when
shipped from the CVS warehouse), 54 (Ms. Rodriguez found the invoices reliable),
59 (outside the presence of the jury, Ms. Rodriguez explained a discrepancy in
numbers as an initial estimate she later revised upon checking her inventory). From
his perspective at trial, Mr. Collins could reasonably determine that any further
cross-examination of Ms. Rodriguez would only serve to reinforce the State’s case.
See Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992).
36
E. Appellant Argues Outside the Record, and the Only Evidence in the Record
Indicates Mr. Collins Was Not Ineffective for Failing to Investigate.
In his final issue under point of error two, Appellant claims Mr. Collins
failed to investigate “the physicality of the evidence.” Brief for Appellant at 39. In
support of his claim, Appellant refers to evidence outside the record – specifically,
to evidence allegedly introduced in Frank Parramore’s trial. Id. at 40 n.12.
“Assertions in an appellate brief that are unsupported by the record will not be
accepted as fact.” Ex parte Preston, 833 S.W.2d 515, 519 (Tex. Crim. App. 1992).
“An appellate court may not consider factual assertions that are outside the
record.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004); see
also Brown v. State, 866 S.W.2d 675, 678 (Tex.App.-Houston [1st Dist.] 1993, pet.
ref’d) (refusing to consider material outside the record that was improperly
attached to party’s appellate brief).
In Appellant’s case, there is no evidence in the record that Mr. Collins failed
to investigate. It is possible he did investigate and determined that unfavorable
answers (see, e.g., III R.R. at 79) would harm Appellant if introduced.
“Judicial scrutiny of counsel’s performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.” Robertson v. State, 187 S.W.3d 475,
37
482 (Tex. Crim. App. 2006). Because the lack of a clear record precludes
meaningful review of counsel’s choices, Appellant cannot show his counsel’s
strategies were deficient. See Mata, 226 S.W.3d at 430. Appellant also fails to
show prejudice, or a reasonable probability that the result of the proceeding would
have been different. Strickland, 466 U.S. at 694. Indeed, four of Appellant’s five
claims essentially challenging the failure to try to show the value was less than
$1,500 are moot: assuming arguendo that fact could be proved at trial, Appellant
would have been convicted under Count II, which would have subjected him to the
exact same range of punishment (see I C.R. at 10). In any event, the evidence of
Appellant’s guilt was overwhelming, including video of the theft itself and
Appellant’s recorded confession to being a party to the theft, supra (at 3-5).
3. The Evidence Was Legally Sufficient to Establish That Appellant
Was a Party to the Theft and to Establish Value.
After the decision of the Court of Criminal Appeals in Brooks v. State, Texas
appellate courts review legal and factual sufficiency challenges in criminal cases
using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104,
107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331
S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only
insufficient if, when considering all the evidence in the light most favorable to the
38
verdict, “no rational factfinder could have found each essential element of the
charged offense beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). While viewing the evidence in the light most favorable to
the verdict, evidence can be insufficient in two circumstances: when the record
contains “no evidence, or merely a ‘modicum’ of evidence, probative of an
element of the offense” or when “the evidence conclusively establishes a
reasonable doubt.” Id. The evidence may also be insufficient when the acts alleged
do not constitute the offense charged. Id. at 108.
Legal sufficiency review “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443
U.S. at 319. Reviewing courts determine whether the necessary inferences are
reasonable based on the “combined and cumulative force of the evidence when
viewed in the light most favorable to the verdict.” Kiffe, 361 S.W.3d at 108.
Courts will treat direct and circumstantial evidence equally. Id.
“Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”
Id. Appellate courts will presume that the factfinder “resolved any conflicting
inferences in favor of the verdict” and defer to that resolution. Id. The reviewing
courts will also defer to “the factfinder’s evaluation of the credibility and the
39
weight of the evidence.” Id. The factfinder is entitled to accept some testimony and
reject other testimony, in whole or in part. Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000), abrogated on other grounds by Laster v. State, 275
S.W.3d 512 (Tex. Crim. App. 2009). In reviewing the sufficiency of the evidence
related to party liability, courts will look to:
“events occurring before, during and after the commission of the
offense and may rely on actions of the defendant which show an
understanding and common design to do the prohibited act.” Each fact
need not point directly and independently to the guilt of the appellant,
as long as the cumulative effect of all the incriminating facts are
sufficient to support the conviction. Motive is a significant
circumstance indicating guilt. Intent may also be inferred from
circumstantial evidence such as acts, words, and the conduct of the
appellant.
Guevara v. State, 152 S.W.3d 45, 49-50 (Tex. Crim. App. 2004) (internal citations
omitted).
Appellant cites Roberson v. State, arguing that just as in that case, there are
insufficient factors linking him to the property. Brief for Appellant at 41. Roberson
is a drug possession case, not a theft case. 80 S.W.3d 730, 741 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d). Felters v. State is more applicable to the
issues in Appellant’s case. See 147 S.W.3d 488, 490 (Tex. App.—Fort Worth
2004, pet. ref’d).
40
In Felters, the appellant was convicted of theft as a party. See id. She
challenged the sufficiency of the evidence to prove she was criminally responsible
for the theft, arguing that she “did not remove a single item of merchandise from
the store …. [or] place[] any item in [c]o-defendant’s shopping bag.” Id. Although
the court of appeals noted that mere presence at the scene was not enough, it
further observed that events before, during and after the actual offense can be
considered to determine whether the evidence was sufficient to show that an
accused was a party to an offense. Id.
The court then focused on the specific facts of the case: the appellant and co-
defendant entered the store together, knew each other, spoke together, shopped
together, and stood together while the latter placed items – some of which the
appellant handed to her – in the co-defendant’s shopping bag. Id. When the co-
defendant went into the dressing room, the appellant remained nearby waiting for
her. Id. The two women left the store together. Id. at 491. The court concluded that
“[t]he evidence clearly reflects more than mere presence” and deferred to the jury’s
verdict. Id.
Similar to the Felters appellant’s contention that she “did not remove a
single item” herself, Appellant asserts the evidence is insufficient to link him to the
stolen property. Brief for Appellant at 41. “A person is guilty as a party, however,
even if that person acts only intentionally or knowingly to promote or assist the
41
commission of the offense by another by soliciting, encouraging, directing, aiding,
or attempting to aid the other person to commit the offense.” Felters, 147 S.W.3d
at 490. There are several facts in Appellant’s case which are similar to Felters:
 Appellant and Parramore entered the store together (III R.R. 45-46; V R.R.
at 9; State’s Ex. 5, Part 1);
 Appellant and Parramore knew each other (State’s Ex. 11, Part 1 at
15:10:20; State’s Ex. 5, Part 1; III R.R. at 111);
 Appellant and Parramore spoke together (State’s Ex. 5, Part 1); and
 Appellant and Parramore left close in time to one another (State’s Ex. 5, Part
4).
See Felters, 147 S.W.3d at 490-91.
Furthermore, whereas the appellant in Felters merely shopped with her co-
defendant, handed her a few items and stood with her as the co-defendant placed
items into her bag, in the instant case, Appellant confessed on video that he and
Parramore fenced stolen items (State’s Ex. 11, Part 4 at 15:29:20, 15:30:45). They
apparently stole merchandise with some regularity; Appellant mentioned several
stores (State’s Ex. 11, Part 3 at 15:15:45; Part 4 at 15:28:55; Part 5 at 15:31:30).
Appellant further admitted his role in distracting the clerk while Parramore stole
the merchandise (State’s Ex. 11, Part 3 at 15:14:35), though they originally
planned to steal razors (State’s Ex. 11, Part 1 at 15:10:00; Part 3 at 15:14:30). The
jury could observe the clerk walking toward Appellant as he performed exactly as
42
described on video (State’s Ex. 5, Part 3), and the clerk testified that it seemed to
her that he was acting in concert with Parramore as a distraction (III R.R. at 83-
84). After Appellant followed Parramore and the clerk out of the store, he fled
when the clerk said she was calling the police (III R.R. at 75-76; State’s Ex. 11,
Part 4 at 15:17:22). In his haste, Appellant left his wallet and cell phone behind
(State’s Ex. 11, Part 4 at 15:17:20), which he did not attempt to recover prior to
trial (III R.R. at 103). Appellant said he was angry that Parramore did not give him
his ‘share’ of the profits from the theft (State’s Ex. 11, Part 1 at 15:10:30; Part 3 at
15:15:23). In sum, there was overwhelming evidence from which a reasonable jury
could conclude Appellant was a party to the offense. See Felters, 147 S.W.3d at
490-91.
Appellant next attempts to challenge the sufficiency of the evidence to prove
the value of the merchandise. Brief for Appellant at 42. The evidence indicated that
the value of the stolen merchandise was $1,913.44 (V R.R. at 17; III R.R. at 66).
Although Appellant complains of the clerk’s reliance on the ledger, Ms. Rodriguez
– who had worked at that store for four years at the time of trial (III R.R. at 35) –
testified that the ledger was created prior to shipping at the warehouse (id. at 53),
and she recorded missing product close in time to the offense (id. at 67) after
checking invoices which she trusted to be accurate (id. at 54-55). Ms. Rodriguez
also testified the box was full (id. at 55), that she had not yet removed any cartons
43
from it (id. at 52), and that it was placed behind a counter where the public did not
have access to it (id. at 75; State’s Ex. 5, Part 3). Detective Wahrmund likewise
testified that the receipt reflected the amount Parramore took (III R.R. at 121). See
Villani v. State, 116 S.W.3d 297, 307 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d) (an investigator’s uncontroverted testimony of the value of computer
processors was legally sufficient evidence of value). Appellant stresses that the
“State even admitted the jury may not believe the quantity or value.” Brief for
Appellant at 42. However, the fact that the State prepared for contingencies before
trial is irrelevant; the jury found the testimony and evidence of value credible, and
the Court should defer to “the factfinder’s evaluation of the credibility and the
weight of the evidence.” See Kiffe, 361 S.W.3d at 108.
Lastly, Appellant challenges the sufficiency of the evidence to show the
number of cartons allegedly contained in the box. First, to the extent Appellant
relies on alleged findings in Parramore’s case, as discussed supra (at 37-38), such
argument is outside the record. Second, the value of the theft must be proven; a
variance in the number (e.g., 32 instead of 36 cartons) would not be material unless
the corresponding lesser value results in a different offense.
“A defect in a description of property under Art. 21.09, Tex. Code Crim.
Proc. Ann. (Vernon 1966), to constitute error, must be of such a degree as to
charge no offense against the law and be thereby void. Such is a jurisdictional
44
defect which may be raised for the first time on appeal.” Sanders v. State, 675
S.W.2d 622, 623 (Tex. App.—Fort Worth 1984, no pet.). Otherwise, if not raised
by a motion to quash, any defect in the description may not be raised for the first
time on appeal. Id. at 624. As the Court of Criminal Appeals observed:
once the defendant has been given proper notice that he must prepare
to defend himself against a charge that he has stolen a certain
“bundle” of property, there is no reason that he should be acquitted if
the evidence shows him guilty of stealing enough of the “bundle” to
make him guilty of the offense charged.... Likewise, the State should
be allowed to plead all property which the evidence may ultimately
prove stolen without thereby being required to prove theft of any
larger quantum of property than the statute at issue requires.
Lehman v. State, 792 S.W.2d 82, 84–85 (Tex. Crim. App. 1990) (citation omitted)
(reviewing a theft case in which several items were alleged to have been stolen);
see also Byrd v. State, 336 S.W.3d 242, 257-58 (Tex. Crim. App. 2011) (“We
agree with the Bailey dissent that ‘[t]he word “variance” ought to be used to
describe instances in which there is a minor discrepancy between the facts alleged
and those proved, such as a difference in spelling, in numerical digits, or in some
other minor way.’” Cothern v. State, 02-13-00466-CR, 2015 WL 2169248, at *2
(Tex. App.—Fort Worth May 7, 2015, no. pet. h.) (not designated for publication)
(emphasis added); Tex. Code Crim. Proc. Ann. art. 21.09 (West, Westlaw through
2013 Sess.) (requiring indictment to include description of personal property, if
known).
45
In this case, Appellant states that “none of the video or picture evidence
admitted in trial indicated the number of cartons actually taken.” Brief for
Appellant at 42. Though Appellant again takes issue with reliance on the ledger, as
discussed supra, there was ample evidence and testimony from which a reasonable
jury could conclude the elements of the offense had been shown. Because – when
considering all the record evidence in the light most favorable to the verdict – it
cannot be said that “no rational factfinder could have found that each essential
element of the charged offense was proven beyond a reasonable doubt,” the Court
should defer to the jury’s determination and overrule Appellant’s final point of
error. See Kiffe, 361 S.W.3d at 107-08.
46
Prayer
Wherefore, premises considered, Appellee respectfully prays that this
Honorable Court of Appeals affirm in all matters the judgment of the trial court in
this case.
JENNIFER THARP
Criminal District Attorney
By
/s/ Joshua D. Presley
Joshua D. Presley
SBN: 24088254
Assistant District Attorney
150 N. Seguin Avenue, Ste. #307
New Braunfels, Texas 78130
Phone: (830) 221-1300
Fax: (830) 608-2008
E-mail: preslj@co.comal.tx.us
Attorney for the State
47
Certificate of Service
I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this Brief for the State has
been delivered to Appellant JERRYL ROBINSON’s attorney of record in this
matter:
Marilee Hazel Brown
SBN# 24046044
marilee@hazelbrownlaw.com
Hazel Brown Wright Reneau, PLLC
391 Landa Street
New Braunfels, TX 78130
Tel: 830-629-6955
Fax: 830-629-2559
Attorney for Appellant on Appeal
By electronically sending it through efile.txcourts.gov to the above-listed email
address, this the 15th day of June, 2015.
/s/ Joshua D. Presley
Joshua D. Presley
48
Certificate of Compliance
I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 11,328
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.
/s/ Joshua D. Presley
Joshua D. Presley
49